Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”). (b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto. (c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h). (d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”. (e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof. (f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
Appears in 4 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (eachconcurrently upon the receipt of any cash proceeds from a Qualified MLP IPO, a “Scheduled Repayment Date”), Borrower an amount equal to 100% of the Net IPO Proceeds therefrom shall be required applied as a mandatory prepayment in accordance with the requirements of Section 5.02(h); provided that such proceeds shall be applied first to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate outstanding principal amount of Initial Term B-1 Loans equal (and accrued interest thereon) in their entirety and thereafter to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate outstanding principal amount of all Initial Term B-2 Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”accrued interest thereon).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto[Reserved].
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after concurrently upon the Closing Date upon which Borrower or any receipt of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/LoansSection (iv)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g5.02(h); provided that such proceeds shall be applied first to repay the outstanding principal amount of Term B-2 Loans (and accrued interest thereon) in their entirety and thereafter to the outstanding principal amount of Term B-1 Loans (hand accrued interest thereon).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”[Reserved].
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof[Reserved].
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds cash proceeds from any Recovery Event (other than in respect of ABL Collateral)Event, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Insurance Cash Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (hSection 5.02(h); providedprovided that such proceeds shall be applied first to repay the outstanding principal amount of Term B-2 Loans (and accrued interest thereon) in their entirety and thereafter to the Term B-1 Loans; provided further, however, with respect to an aggregate amount of no more than $15,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Insurance Cash Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Insurance Cash Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicablethat no Event of Default then exists; provided further that following the repayment in full of the Term B-2 Loans, 18 months) after the date Borrower may elect, in lieu of receipt by Borrower or such Restricted Subsidiary of applying such Net Insurance ProceedsCash Proceeds to repay Term B-1 Loans, Borrower or such Restricted Subsidiary has not so used to deposit all or a portion of such Net Insurance Cash Proceeds that would otherwise be required to be applied in a segregated account of the Borrower over which the Administrative Agent has been granted control as a mandatory repayment hereunder, an amount equal to the collateral for all remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(gObligations.
(g) and [Reserved].
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Borrower may designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made, provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such 12-month LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (orii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the extent applicableabove, 18-monthmake such designation in its sole discretion.
(i) periodIn addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
Appears in 3 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (OCI Partners LP), Term Loan Credit Agreement (OCI Partners LP)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 3,875,000 and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes, any Permitted Pari Passu Loans, Refinancing Notes/Loans or Secured Notes (or, in each case, any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase of pari passu Indebtedness from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Loans were made; provided that: (i) repayments of LIBO Rate Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by ▇▇▇▇▇▇▇▇ as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, an amount equal to the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02, (ii) to the extent that Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Recovery Event, or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 5.02 and (iii) to the extent that the Net Sale Proceeds of an Asset Sale are attributable to a non-Wholly-Owned Subsidiary, the Net Insurance Proceeds of a Recovery Event are attributable to a non-Wholly-Owned Subsidiary or Excess Cash Flow is attributable to a non-Wholly-Owned Subsidiary, the amount of such Net Sale Proceeds, such Net Insurance Proceeds and such Excess Cash Flow used to calculate the required prepayment pursuant to this Section 5.02 shall not exceed the lesser of (x) an amount corresponding to the proportionate ownership interests in such non-Wholly-Owned Subsidiary or (y) an amount corresponding to the amount of distributions permitted to be made from such non-Wholly-Owned Subsidiary to its direct or indirect parent entity that is a Wholly-Owned Subsidiary for such purposes at the time such prepayment is required to be made.
(k) Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repaymen
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31September 30, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 5,000,000 and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 120,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii), (xxiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Qualified Securitization Transaction or Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 30,000,000 and 5.02.5% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 120,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Secured Notes, any Permitted Pari Passu Notes, any Permitted Pari Passu Loans or Refinancing Notes/Loans (or, in each case, any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase of pari passu Indebtedness from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made; provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by ▇▇▇▇▇▇▇▇ as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, an amount equal to the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02, (ii) to the extent that Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Recovery Event, or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 5.02 and (iii) to the extent that the Net Sale Proceeds of an Asset Sale are attributable to a non-Wholly-Owned Subsidiary, the Net Insurance Proceeds of a Recovery Event are attributable to a non-Wholly-Owned Subsidiary or Excess Cash Flow is attributable to a non-Wholly-Owned Subsidiary, the amount of such Net Sale Proceeds, such Net Insurance Proceeds and such Excess Cash Flow used to calculate the required prepayment pursuant to this Section 5.02 shall not exceed the lesser of (x) an amount corresponding to the proportionate ownership interests in such non-Wholly-Owned Subsidiary or (y) an amount corresponding to the amount of distributions permitted to be made from such non-Wholly-Owned Subsidiary to its direct or indirect parent entity that is a Wholly-Owned Subsidiary for such purposes at the time such prepayment is required to be made.
(k) Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of ▇▇▇▇▇▇▇▇’s Notice of Loan Prepayment and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Ter
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December DecemberMarch 31, 202120242025, an aggregate principal amount of Initial 20242025 Term Loans equal to $5,312,500, 3,292,500 and (ii) on the Initial Maturity Date for Initial 20242025 Term Loans, the aggregate principal amount of all Initial Initial2025 Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial 20242025 Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 80,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 40,000,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 80,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes, any Permitted Pari Passu Loans, Refinancing Notes/Loans or Secured Notes (or, in each case, any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase of pari passu Indebtedness from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Loans were made; provided that: (i) repayments of Term SOFR Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by ▇▇▇▇▇▇▇▇ as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, an amount equal to the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02, (ii) to the extent that Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Recovery Event, or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 5.02 and (iii) to the extent that the Net Sale Proceeds of an Asset Sale are attributable to a non-Wholly-Owned Subsidiary, the Net Insurance Proceeds of a Recovery Event are attributable to a non-Wholly-Owned Subsidiary or Excess Cash Flow is attributable to a non-Wholly-Owned Subsidiary, the amount of such Net Sale Proceeds, such Net Insurance Proceeds and such Excess Cash Flow used to calculate the required prepayment pursuant to this Section 5.02 shall not exceed the lesser of (x) an amount corresponding to the proportionate ownership interests in such non-Wholly-Owned Subsidiary or (y) an amount corresponding to the amount of distributions permitted to be made from such non-Wholly-Owned Subsidiary to its direct or indirect parent entity that is a Wholly-Owned Subsidiary for such purposes at the time such prepayment is required to be made.
(k) Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the d
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,5003,875,0005,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes, any Permitted Pari Passu Loans, Refinancing Notes/Loans or Secured Notes (or, in each case, any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase of pari passu Indebtedness from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Loans were made; provided that: (i) repayments of LIBO Rate Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by ▇▇▇▇▇▇▇▇ as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, an amount equal to the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02, (ii) to the extent that Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Recovery Event, or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 5.02 and (iii) to the extent that the Net Sale Proceeds of an Asset Sale are attributable to a non-Wholly-Owned Subsidiary, the Net Insurance Proceeds of a Recovery Event are attributable to a non-Wholly-Owned Subsidiary or Excess Cash Flow is attributable to a non-Wholly-Owned Subsidiary, the amount of such Net Sale Proceeds, such Net Insurance Proceeds and such Excess Cash Flow used to calculate the required prepayment pursuant to this Section 5.02 shall not exceed the lesser of (x) an amount corresponding to the proportionate ownership interests in such non-Wholly-Owned Subsidiary or (y) an amount corresponding to the amount of distributions permitted to be made from such non-Wholly-Owned Subsidiary to its direct or indirect parent entity that is a Wholly-Owned Subsidiary for such purposes at the time such prepayment is required to be made.
(k) Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31September 30, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 5,000,000 and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 120,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii), (xxiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Qualified Securitization Transaction or Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 30,000,000 and 5.02.5% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 120,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Secured Notes, any Permitted Pari Passu Notes, any Permitted Pari Passu Loans or Refinancing Notes/Loans (or, in each case, any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase of pari passu Indebtedness from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO RateTerm Benchmark Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO RateTerm Benchmark Term Loans were made; provided that: (i) repayments of LIBO Rate Term Benchmark Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO RateTerm Benchmark Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by ▇▇▇▇▇▇▇▇ as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, an amount equal to the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02, (ii) to the extent that Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Recovery Event, or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 5.02 and (iii) to the extent that the Net Sale Proceeds of an Asset Sale are attributable to a non-Wholly-Owned Subsidiary, the Net Insurance Proceeds of a Recovery Event are attributable to a non-Wholly-Owned Subsidiary or Excess Cash Flow is attributable to a non-Wholly-Owned Subsidiary, the amount of such Net Sale Proceeds, such Net Insurance Proceeds and such Excess Cash Flow used to calculate the required prepayment pursuant to this Section 5.02 shall not exceed the lesser of (x) an amount corresponding to the proportionate ownership interests in such non-Wholly-Owned Subsidiary or (y) an amount corresponding to the amount of distributions permitted to be made from such non-Wholly-Owned Subsidiary to its direct or indirect parent entity that is a Wholly-Owned Subsidiary for such purposes at the time such prepayment is required to be made.
(k) Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of ▇▇▇▇▇▇▇▇’s Notice of Loan Prepayment and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repaymen
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp)
Mandatory Repayments. (a) In addition [Intentionally Omitted].
(i) With respect to any other mandatory repayments pursuant to this Section 5.02the Initial Loans, on each date set forth below (eachthe Initial Maturity Date, a “Scheduled Repayment Date”), the Borrower shall be required to repay to in full the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate entire principal amount of Initial Term Loans equal then outstanding if such Initial Loans have not been converted on such date into Extended Loans pursuant to $5,312,500Section 2.01(b) (and/or, if the conditions to extension contained in Section 2.01(b) have been satisfied, concurrently exchanged for Exchange Notes in accordance with Section 10.15) and (ii) with respect to the Extended Loans, if any, on the Initial Final Maturity Date for Initial Term LoansDate, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed repay in full the preceding clause (a)) entire principal amount of Term Extended Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following on each date on or after the Closing Initial Borrowing Date upon which Borrower Holdings or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence by Holdings or any of its Subsidiaries of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 11.01 except that, (other than x) Permitted Refinancing Term Indebtedness incurred in respect of the Loans and Refinancing Notes/Loans(y) without duplication of preceding clause (x), any issuance of Permitted Notes (except in each case shall not be excluded pursuant to this parenthetical), an amount equal to 100% of the Net Debt Cash Proceeds therefrom of the respective incurrence of Indebtedness shall be applied as a mandatory repayment on such date in accordance with the requirements of Sections Section 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following on each date on or after the Closing Effective Date upon which Borrower Holdings or any of its Restricted Subsidiaries receives any Net Sale Proceeds cash proceeds from any Asset Sale (other than in respect of ABL Collateral)or Recovery Event, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Cash Proceeds therefrom shall be applied as a mandatory repayment on such date in accordance with the requirements of Sections Section 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of that such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Cash Proceeds shall not be required to be so applied or on such date so long as no Event of Default then exists and such Net Cash Proceeds shall be used to make mandatory repayments purchase assets used or to be used in the businesses permitted pursuant to Section 11.03(b) within 540 days following the date of Term Loans such Asset Sale or Recovery Event, and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoingprovided further, Borrower or such Restricted Subsidiary may apply that if all or a any portion of such Net Sale Cash Proceeds that would otherwise be not required to be so applied as a mandatory repayment hereunder provided above in this Section 5.02(d) are not so reinvested within such 540-day period (or such earlier date, if any, as Holdings or the relevant Subsidiary determines not to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of Net Cash Proceeds from such Net Asset Sale Proceeds (oror Recovery Event as set forth above), if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month period (oror such earlier date, as the case may be) as provided above in this Section 5.02(d) without regard to the extent applicablepreceding proviso. Notwithstanding anything to the contrary contained above in this clause (d), 18-monthif there are one or more other issues of Second Lien Indebtedness then outstanding which require the payment (or offer to repay) period. Any such Second Lien Indebtedness with such Net Sale Cash Proceeds, then the Borrower shall only be required to apply the Loan Proportionate Amount of such Net Cash Proceeds in respect accordance with this Section 5.02(d); provided further that if any portion of any such Asset Sale Net Cash Proceeds is not required actually applied to repay other outstanding Second Lien Indebtedness (whether the holders thereof have declined to participate in an offer to purchase or otherwise), then within 5 Business Days after it is determined that such amount will not be so applied, the respective amount shall be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”(determined without regard to this sentence).
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof[Intentionally Omitted].
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following on each date on or after the Closing Effective Date upon which Borrower Holdings receives any cash proceeds from the sale or any issuance of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral)Equity Interests, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Insurance Cash Proceeds from of such Recovery Event sale or issuance of Equity Interests shall be applied on such date as a mandatory repayment and/or commitment reduction in accordance with the requirements of Sections Section 5.02(g).
(g) and (h); provided, however, with respect to an aggregate Each amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder pursuant to reinvest Sections 5.02(c), (d) and (f) in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds accordance with this Section 5.02(g) shall be applied (ori) first, if within such 12-month period, Borrower on or any of its Restricted Subsidiaries enters into a binding commitment prior to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (orthe Merger Closing Date, to reduce (on a dollar for dollar basis) the extent applicableTotal Commitment, 18 monthsand (ii) after second, to repay the date outstanding principal amount of receipt by Borrower or such Restricted Subsidiary of such Net Insurance ProceedsLoans, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds except that would otherwise be required amounts to be applied as a mandatory repayment hereunder, an amount equal pursuant to the remaining portion of such Net Insurance Proceeds that would otherwise be required to Section 5.02(c) shall first be applied as a mandatory required by preceding clause (ii) and only after all such Loans have been repaid in full shall same be applied as required by preceding clause (i). The amount of each principal repayment hereunder of outstanding principal of Term Loans made as required by Sections 5.02(c), (d), (f) and (i) shall be applied as a mandatory repayment in accordance with pro rata to the requirements then outstanding Loans of Sections 5.02(g) and the Lenders.
(h) [Intentionally Omitted].
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Loans shall be mandatorily repaid in full on the last day date on which a Change of such 12-month (or, to the extent applicable, 18-month) periodControl occurs.
Appears in 2 contracts
Sources: Bridge Loan Agreement (CF Industries Holdings, Inc.), Bridge Loan Agreement (CF Industries Holdings, Inc.)
Mandatory Repayments. (ai) In addition The Borrower hereby unconditionally promises to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower pay and shall be required to repay to the Administrative Agent for the ratable account of each Lender the Lenders (i) then unpaid principal amount of each Loan on the last Business Day of each March, June, September and December, Maturity Date.
(aii) commencing Commencing with the Quarterly Payment Date occurring on December 31, 20212007, on each Quarterly Payment Date thereafter, the Borrower shall repay the outstanding principal amount of the Term A Loans in an amount equal to $600,000.
(iii) Commencing with the Quarterly Payment Date on December 31, 2007, on each Quarterly Payment Date, the Borrower shall repay the outstanding principal amount of the Term B Loans in an amount equal to 5.0% of each Term B Borrowing made hereunder.
(iv) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 6.3) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Initial Term Loans equal to $5,312,500, 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (viii) below)
(v) Upon the sale or issuance by any Loan Party or any of its Subsidiaries of any of its Equity Interests (other than any issuances of Equity Interests as provided in Section 6.6(a) and (ii) on the Initial Maturity Date for Initial Term LoansSection 6.6(c)), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Initial Term Loans that remain outstanding on Net Cash Proceeds received therefrom immediately upon receipt thereof by such date Loan Party or such Subsidiary (each such repayment described prepayments to be applied as set forth in clauses clause (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”viii).
(bvi) In addition to Upon the incurrence or issuance by any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower Party or any of its Restricted Subsidiaries receives of any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)6.1), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of the all Net Debt Cash Proceeds received therefrom shall immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as a mandatory repayment set forth in accordance with the requirements of Sections 5.02(gclause (viii) and (hbelow).
(dvii) In addition Upon any Extraordinary Receipt in excess of $100,000 received by or paid to or for the account of any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower Loan Party or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale Subsidiaries, and not otherwise included in clause (other than in respect of ABL Collateraliv), (v) or (vi) of this Section 2.10(b), the Borrower shall prepay an aggregate principal amount of Loans equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the all Net Sale Cash Proceeds received therefrom shall immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as a mandatory repayment set forth in accordance with the requirements of Sections 5.02(gclause (viii) and (hbelow); provided, however, that with respect to an aggregate amount any proceeds of no more than insurance or condemnation awards (or payments in lieu thereof), at the greater election of $55,000,000 and 10% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for (as notified by the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied the Administrative Agent on or used prior to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (orinsurance proceeds or condemnation awards), if and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 90 days after the receipt of such 12-month periodcash proceeds to replace or repair the equipment, Borrower fixed assets or any real property in respect of its Restricted Subsidiaries enters into a binding commitment to so reinvest which such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment)cash proceeds were received; and provided, further, however, that if within 12 months (or, any cash proceeds not so applied shall be immediately applied to the extent applicable, 18 months) after prepayment of the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied Loans as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment set forth in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”2.10(b)(viii).
(eviii) In addition to any other mandatory repayments Each prepayment of Loans pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder foregoing provisions of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less clauses (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), through (vii), (viii)inclusive, (ix)of this Section 2.10(b) shall be applied, (x)first, (xiii) or (xv), less (vi) ratably to each of the portion of transaction costs Term A Facility and expenses related to items (ii) – (v) above (the Term B Facility and to the extent not deducted principal repayment installments thereof in determining Consolidated Net Income)inverse order of maturity and, less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due)second, to the extent not financed Revolving Credit Facility (together with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest corresponding reduction in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestmentRevolving Credit Commitments); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
Appears in 2 contracts
Sources: Credit Agreement (Harris Interactive Inc), Credit Agreement (Harris Interactive Inc)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 202120212024, an aggregate principal amount of Initial Initial2024 Term Loans equal to $5,312,500, 5,312,500,3,292,500 and (ii) on the Initial Maturity Date for Initial Initial2024 Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Initial2024 Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 55,000,00080,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 27,500,00040,000,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 55,000,00080,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes, any Permitted Pari Passu Loans, Refinancing Notes/Loans or Secured Notes (or, in each case, any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase of pari passu Indebtedness from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”)[reserved].
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral)Sale, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $10,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by the Lead Borrower and its Restricted Subsidiaries in any fiscal year of the Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofif no Event of Default then exists. Notwithstanding the foregoing, the Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required (i) in the case of ABL Collateral (as defined in the ABL Intercreditor Agreement), to be applied prepay Indebtedness under the ABL Credit Agreement or any other Indebtedness secured by Liens ranking senior to the Liens securing the Indebtedness hereunder on such ABL Collateral (as a mandatory repayment hereunder defined in the Intercreditor Agreement) and in the case of revolving borrowings, to the extent accompanied by permanent reductions in commitments with respect thereto or (ii) to reinvest in the purchase of assets useful in the business of the Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Lead Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Lead Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount equal to the remainder of (i) the Applicable Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all (x) voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other Indebtedness secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement), during such Excess Cash Flow Payment Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which the Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event, an amount equal to 100% of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Section 5.02(g) and (h); provided, however, with respect to no more than $10,000,000 in the aggregate of such Net Insurance Proceeds received by the Lead Borrower and its Restricted Subsidiaries in any fiscal year of the Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment if no Event of Default then exists. Notwithstanding the foregoing, the Lead Borrower may apply such Net Insurance Proceeds (i) in the case of ABL Collateral (as defined in the ABL Intercreditor Agreement), to prepay Indebtedness under the ABL Credit Agreement or any other Indebtedness secured by Liens ranking senior to the Liens securing the Indebtedness hereunder on such ABL Collateral (as defined in the Intercreditor Agreement) and in the case of revolving borrowings, to the extent accompanied by permanent reductions in commitments with respect thereto or (ii) to reinvest in the purchase of assets useful in the business of the Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such proceeds (or, if within such 12-month period, the Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Sale Proceeds, within 18 months following the date of receipt of such proceeds) (and, in connection therewith, shall thereafter promptly provide such other information with respect to such reinvestment as the Administrative Agent may from time to time reasonably request); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Lead Borrower or any of its Restricted Subsidiaries of such Net Insurance Proceeds, the Lead Borrower or any of its Restricted Subsidiaries have not so used all or a portion of such Net Insurance Proceeds otherwise required to be applied as a mandatory repayment pursuant to this sentence, the remaining portion of such Net Insurance Proceeds shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(c), (d), (e), (f) and (k) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Junior Notes or Permitted Junior Loans that are secured on a pari passu basis with the Obligations (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Lead Borrower.
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made, provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Initial Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the relevant Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of such Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Initial Term Loans pursuant to this Section 5.02 or (ii) to the extent that such Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) Notwithstanding anything to the contrary herein, so long as the First Lien Credit Agreement remains outstanding, in no event shall the Credit Parties be required to make any mandatory prepayment pursuant to Sections 5.02(d), (e) or (f); provided that during such time as the First Lien Credit Agreement remains outstanding, the Lead Borrower shall be required to apply any First Lien Declined Proceeds as a mandatory repayment of Term Loans in accordance with the requirements of Sections 5.02(g) and (h) no later than three Business Days after the deadline for First Lien Rejection Notices.
(l) The Lead Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of the Lead Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e), (f) or (k) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled.
Appears in 2 contracts
Sources: Second Lien Term Loan Credit Agreement (PAE Inc), Second Lien Term Loan Credit Agreement (PAE Inc)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31September 30, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 5,000,000 and (ii) on the Initial Maturity Date for Initial Term B Loans, the aggregate principal amount of all Initial Term B Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term B Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 120,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii), (xxiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Qualified Securitization Transaction or Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 30,000,000 and 5.02.5% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 120,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Secured Notes, any Permitted Pari Passu Notes, any Permitted Pari Passu Loans or Refinancing Notes/Loans (or, in each case, any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase of pari passu Indebtedness from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term Benchmark Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term Benchmark Term Loans were made; provided that: (i) repayments of Term Benchmark Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term Benchmark Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by ▇▇▇▇▇▇▇▇ as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, an amount equal to the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02, (ii) to the extent that Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Recovery Event, or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 5.02 and (iii) to the extent that the Net Sale Proceeds of an Asset Sale are attributable to a non-Wholly-Owned Subsidiary, the Net Insurance Proceeds of a Recovery Event are attributable to a non-Wholly-Owned Subsidiary or Excess Cash Flow is attributable to a non-Wholly-Owned Subsidiary, the amount of such Net Sale Proceeds, such Net Insurance Proceeds and such Excess Cash Flow used to calculate the required prepayment pursuant to this Section 5.02 shall not exceed the lesser of (x) an amount corresponding to the proportionate ownership interests in such non-Wholly-Owned Subsidiary or (y) an amount corresponding to the amount of distributions permitted to be made from such non-Wholly-Owned Subsidiary to its direct or indirect parent entity that is a Wholly-Owned Subsidiary for such purposes at the time such prepayment is required to be made.
(k) Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of ▇▇▇▇▇▇▇▇’s Notice of Loan Prepayment and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp)
Mandatory Repayments. (a) In addition On any day on which the sum of (I) the aggregate outstanding principal amount of all Revolving Loans (after giving effect to any all other mandatory repayments pursuant to this Section 5.02thereof on such date) and (II) the aggregate amount of all Letter of Credit Outstandings exceeds the lesser of the Borrowing Base Amount and the Total Revolving Loan Commitment at such time, on each date set forth below (each, a “Scheduled Repayment Date”), the Borrower shall be required prepay on such day the principal of Revolving Loans in an amount equal to repay such excess. If, after giving effect to the prepayment of all outstanding Revolving Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment at such time, the Borrower shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash and/or Cash Equivalents to be held as security for the ratable account all obligations of the Borrower to the Issuing Lender and the Lenders (i) on hereunder in a cash collateral account to be established by the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”)Administrative Agent.
(b) In addition to any other mandatory repayments pursuant to this Section 5.024.2, on each date on or after the Initial Borrowing Date upon which the Borrower or any of its Domestic Subsidiaries receives any cash proceeds from any capital contribution or any sale or issuance of its equity, the Net Equity Proceeds in excess of $3,000,000 in the aggregate during any fiscal year of the Borrower of such capital contribution or sale or issuance of equity shall first be required applied on such date as a mandatory repayment of principal of outstanding Term Loans (as defined in the First Horizon International Financing documents) (up to makea maximum amount of 50% of such Net Equity Proceeds), second, any remainder as a mandatory repayment of principal of outstanding Loans in accordance with respect the requirements of Sections 4.2(g) and (h), third, any remainder to each new Tranche (i.e., other than Initial any outstanding Term Loans, which are addressed in and fourth, with the preceding clause (a)) of Term Loans to balance, if any, being retained by the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment Borrower or Extension Amendment applicable theretoDomestic Subsidiary.
(c) In addition to any other mandatory repayments pursuant to this Section 5.024.2, within 10 days following on each date on or after the Closing Initial Borrowing Date upon which the Borrower or any of its Restricted Domestic Subsidiaries receives any cash proceeds from any issuance or incurrence by the Borrower or any of its Domestic Subsidiaries of Indebtedness for borrowed money (other than Indebtedness for borrowed money permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)9.4 as in effect on the Effective Date), an amount equal to 100% of the Net Debt Proceeds therefrom of the respective incurrence of Indebtedness shall first be applied on such date as a mandatory repayment of principal of outstanding Term Loans (as defined in the First Horizon International Financing documents) (up to a maximum amount of 50% of such Net Debt Proceeds), second, any remainder as a mandatory repayment of principal of outstanding Loans in accordance with the requirements of Sections 5.02(g4.2(g) and (h), third, any remainder to any outstanding Term Loans, and fourth, with the balance, if any, being retained by the Borrower or applicable Domestic Subsidiary.
(d) In addition to any other mandatory repayments pursuant to this Section 5.024.2, within 10 days following on each date on or after the Closing Initial Borrowing Date upon which the Borrower or any of its Restricted Domestic Subsidiaries receives any Net Sale Proceeds cash proceeds from any Asset Sale (other than in respect of ABL Collateral)Sale, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall first be applied on such date as a mandatory repayment of principal of outstanding Term Loans (as defined in the First Horizon International Financing documents) (up to a maximum amount of 50% of such Net Sale Proceeds), second, any remainder as a mandatory repayment of principal of outstanding Loans in accordance with the requirements of Sections 5.02(g4.2(g) and (h), third, any remainder to any outstanding Term Loans, and fourth, with the balance, if any, being retained by the Borrower or applicable Domestic Subsidiary; provided, however, that with respect to an aggregate amount of no more than $500,000 in the greater aggregate of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries cash proceeds from Asset Sales in any fiscal year of the Borrower, such the Net Sale Proceeds therefrom shall not be required to be so applied or on such date so long as no Default and no Event of Default then exits and such Net Sale Proceeds shall be used to make mandatory repayments purchase assets (other than working capital) used or to be used in the businesses permitted pursuant to Section 9.15 within 90 days following the date of Term Loans such Asset Sale, and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoingprovided further, Borrower or such Restricted Subsidiary may apply that if all or a any portion of such Net Sale Proceeds that would otherwise be not required to be so applied as a mandatory repayment hereunder provided above in this Section 4.2(d) are not so reinvested within such 90-day period (or such earlier date, if any, as the Borrower or the relevant Domestic Subsidiary determines not to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (orfrom such Asset Sale as set forth above), if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month period (oror such earlier date, as the case may be) as provided above in this Section 4.2(d) without regard to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”preceding proviso.
(e) In addition to any other mandatory repayments pursuant to this Section 5.024.2, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to date on or after the remainder of (i) Initial Borrowing Date upon which the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person thatany of its Domestic Subsidiaries receives any cash proceeds from any Recovery Event, prior to and immediately following the making of Net Recovery Event Proceeds from such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), Recovery Event shall first be applied as a mandatory repayment of principal of outstanding Term Loans (as defined in the First Horizon International Financing documents) (up to a maximum amount of 50% of such Net Recovery Event Proceeds), second, any remainder as a mandatory repayment of principal of outstanding Loans in accordance with the requirements of Sections 5.02(g4.2(g) and (h), third, any remainder to any outstanding Term Loans, and fourth, with the balance, if any, being retained by the Borrower or applicable Domestic Subsidiary; provided, however, that so long as no prepayment Default or Event of Default then exists and such Net Recovery Event Proceeds do not exceed $1,000,000 in the aggregate in any fiscal year of the Borrower such Net Recovery Event Proceeds shall not be required to be so applied on such date to the extent that the Borrower has delivered a certificate to the Administrative Agent stating that such Net Recovery Event Proceeds shall be used to replace or restore any properties or assets in respect of which such Net Recovery Event Proceeds were paid within 180 days following the date of the receipt of such Net Recovery Event Proceeds (which certificate shall set forth the estimates of the Net Recovery Event Proceeds to be so expended); and provided further, that if all or any portion of such Net Recovery Event Proceeds not required with respect to be so applied pursuant to the preceding proviso are not so used within 180 days after the date of the receipt of such Net Recovery Event Proceeds (or such earlier date, if any, as the Borrower or the relevant Domestic Subsidiary determines not to reinvest the Net Recovery Event Proceeds relating to such Recovery Event as set forth above), such remaining portion shall be applied on the last day of such period (or such earlier date, as the case may be) as provided above in this Section 4.2(e) without regard to the preceding proviso.
(f) In addition to any other mandatory prepayments pursuant to this Section 4.2, on March 31 of each year, beginning March 31, 2004, an amount equal to 75% of Excess Cash Flow Payment Period to of the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Domestic Subsidiaries for the most recently ended Test Periodcompleted fiscal year of the Borrower shall be first applied on such date as a mandatory repayment of principal of outstanding Loans in accordance with the requirements of Sections 4.2(g) and (h), second, as a mandatory repayment of principal of outstanding Term Loans (as defined in the First Horizon International Financing documents), and third, with the balance, if any, being retained by the Borrower or the applicable Domestic Subsidiary.
(g) Notwithstanding anything in Section 4.2(b), (c), (d) and (e) to the contrary, so long as no Event of Default or Default shall have occurred and be continuing, the Borrower may request that all of such Net Equity Proceeds, Net Debt Proceeds, Net Sale Proceeds or Net Recovery Event Proceeds, as applicable, be applied first to the outstanding Loans hereunder and any remainder to Term Loans and upon the consent of the Required Lenders, the Administrative Agent shall apply the same in such order. All repayments of Loans pursuant to Section 4.2(b), (c), (d), (e) and (f) shall be applied pro rata to the Loans.
(h) After an Event of Default shall have occurred and be continuing, the Administrative Agent shall have the right to designate which loans (Term Loans or Loans) shall be repaid in its sole discretion. With respect to each repayment of Loans required by this Section 4.2, so long as no Event of Default shall have occurred and be continuing, the Borrower may designate the Types of Loans which are to be repaid and, in such casethe case of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which such Eurodollar Loans were made, provided that: (i) repayments of Eurodollar Loans pursuant to this Section 4.2 may only be made on the last day of an Interest Period applicable thereto unless all Eurodollar Loans with Interest Periods ending on such date of required prepayment repayment and all Base Rate Loans have been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount, such Borrowing shall be only automatically converted into a Borrowing of Base Rate Loans; and (iii) each repayment of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans. In the amount absence of a designation by the Borrower as described in excess thereofthe preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(fi) In addition to any other mandatory repayments pursuant to this Section 5.024.2, within 10 days following each (i) all then outstanding Revolving Loans shall be repaid in full on the Revolving Loan Maturity Date and (ii) unless the Required Lenders otherwise agree in writing, all then outstanding Loans shall be repaid in full on the date on or after the Closing Date upon which Borrower or any a Change of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) periodControl occurs.
Appears in 2 contracts
Sources: Credit Agreement (First Horizon Pharmaceutical Corp), Credit Agreement (First Horizon Pharmaceutical Corp)
Mandatory Repayments. (ai) In addition The Borrower hereby unconditionally promises to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower pay and shall be required to repay to the Administrative Agent for the ratable account of each Lender the Lenders (i) then unpaid principal amount of each Loan on the last Business Day of each March, June, September and December, Maturity Date.
(aii) commencing Commencing with the Quarterly Payment Date occurring on December 31, 20212007, on each Quarterly Payment Date thereafter, the Borrower shall repay the outstanding principal amount of the Term A Loans in an amount equal to $600,000.
(iii) Commencing with the Quarterly Payment Date on December 31, 2007, on each Quarterly Payment Date, the Borrower shall repay the outstanding principal amount of the Term B Loans in an amount equal to 5.0% of each Term B Borrowing made hereunder.
(iv) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 6.3) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Initial Term Loans equal to $5,312,500, 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (viii) below)
(v) Upon the sale or issuance by any Loan Party or any of its Subsidiaries of any of its Equity Interests (other than any issuances of Equity Interests as provided in Section 6.6(a) and (ii) on the Initial Maturity Date for Initial Term LoansSection 6.6(c)), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Initial Term Loans that remain outstanding on Net Cash Proceeds received therefrom immediately upon receipt thereof by such date Loan Party or such Subsidiary (each such repayment described prepayments to be applied as set forth in clauses clause (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”viii).
(bvi) In addition to Upon the incurrence or issuance by any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower Party or any of its Restricted Subsidiaries receives of any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)6.1), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of the all Net Debt Cash Proceeds received therefrom shall immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as a mandatory repayment set forth in accordance with the requirements of Sections 5.02(gclause (viii) and (hbelow).
(dvii) In addition Upon any Extraordinary Receipt in excess of $100,000 received by or paid to or for the account of any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower Loan Party or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale Subsidiaries, and not otherwise included in clause (other than in respect of ABL Collateraliv), (v) or (vi) of this Section 2.10(b), the Borrower shall prepay an aggregate principal amount of Loans equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the all Net Sale Cash Proceeds received therefrom shall immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as a mandatory repayment set forth in accordance with the requirements of Sections 5.02(gclause (viii) and (hbelow); provided, however, that with respect to an aggregate amount any proceeds of no more than insurance or condemnation awards (or payments in lieu thereof), at the greater election of $55,000,000 and 10% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for (as notified by the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied the Administrative Agent on or used prior to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (orinsurance proceeds or condemnation awards), if and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 90 days after the receipt of such 12-month periodcash proceeds to replace or repair the equipment, Borrower fixed assets or any real property in respect of its Restricted Subsidiaries enters into a binding commitment to so reinvest which such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment)cash proceeds were received; and provided, further, however, that if within 12 months any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.10(b)(viii).
(orviii) Each prepayment of Loans pursuant to the foregoing provisions of clauses (iv) through (vii), inclusive, of this Section 2.10(b) shall be applied, first, ratably to each of the Term A Facility and the Term B Facility and to the principal repayment installments thereof in inverse order of maturity and, second, to the extent applicableRevolving Credit Facility (together with a corresponding reduction in the Revolving Credit Commitments).
(ix) On the day immediately prior to the commencement of each Clean-up Period, 18 monthsthe Borrower shall repay in full the Outstanding Amount of all Revolving Loans.
(x) after Each Revolving Loan shall be paid in full on the date occurring no later than twenty-five days following the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the Revolving Credit Borrowing.
(xi) The prepayment requirements of Sections 5.02(gclauses (ix) and (hx) on shall terminate upon the Administrative Agent’s receipt of a Compliance Certificate evidencing to the reasonable satisfaction of the Administrative Agent that the Consolidated Total Leverage Ratio of the Borrower is less than 2.25 to 1.00 as of the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result each of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the two most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereofMeasurement Periods for which Compliance Certificates have been delivered.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
Appears in 2 contracts
Sources: Credit Agreement (Harris Interactive Inc), Credit Agreement (Harris Interactive Inc)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes, any Permitted Pari Passu Loans, Refinancing Notes/Loans or Secured Notes (or, in each case, any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase of pari passu Indebtedness from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Loans were made; provided that: (i) repayments of LIBO Rate Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by ▇▇▇▇▇▇▇▇ as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, an amount equal to the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02, (ii) to the extent that Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Recovery Event, or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 5.02 and (iii) to the extent that the Net Sale Proceeds of an Asset Sale are attributable to a non-Wholly-Owned Subsidiary, the Net Insurance Proceeds of a Recovery Event are attributable to a non-Wholly-Owned Subsidiary or Excess Cash Flow is attributable to a non-Wholly-Owned Subsidiary, the amount of such Net Sale Proceeds, such Net Insurance Proceeds and such Excess Cash Flow used to calculate the required prepayment pursuant to this Section 5.02 shall not exceed the lesser of (x) an amount corresponding to the proportionate ownership interests in such non-Wholly-Owned Subsidiary or (y) an amount corresponding to the amount of distributions permitted to be made from such non-Wholly-Owned Subsidiary to its direct or indirect parent entity that is a Wholly-Owned Subsidiary for such purposes at the time such prepayment is required to be made.
(k) Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such rep
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (eachQuarterly Payment Date and on the Maturity Date, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay the principal amount of Term Loans, to the Administrative Agent for extent then outstanding, in an amount equal to (x) on each Quarterly Payment Date, beginning with the ratable account first Quarterly Payment Date at the end of the Lenders first full calendar quarter ending after the Closing Date, $625,000 and (iy) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term LoansDate, the aggregate remaining principal amount of all Initial then outstanding Term Loans that remain outstanding on such date (each such repayment described in clauses under clause (ix) and (iiy), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g5.02(i), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following five Business Days after each date on or after the Closing Date upon which Borrower the Parent Guarantor or any of its Restricted Subsidiaries receives any cash proceeds from any capital contribution or any sale, issuance offering or incurrence placement of Indebtedness its Equity Interests (other than Indebtedness (i) the Common Equity Financing, (ii) any cash proceeds of such capital contribution or sale, issuance offering or placement of Equity Interests to the extent such cash proceeds are (x) applied to fund (1) Equity Cures, (2) investments or transactions permitted to be incurred made pursuant to Section 10.04 9.01(a)(iv) or 9.04, or (other than Refinancing Term Loans 3) Capital Expenditures, or (y) designated in writing by the Borrowers to be additive to the amount of the Cumulative Credit pursuant to clause (b) of the definition thereof), (iii) issuances of Equity Interests to Parent Guarantor or any Restricted Subsidiary of Parent Guarantor by any Restricted Subsidiary of Parent Guarantor, (iv) any capital contributions to any Restricted Subsidiary of Parent Guarantor made by Parent Guarantor or any Restricted Subsidiary of Parent Guarantor or (v) sales or issuances of Equity Interests in Parent Guarantor to employees, officers and/or directors of Parent Guarantor and Refinancing Notes/Loans)its Restricted Subsidiaries (or any direct or indirect Parent) (including as a result of the exercise of any warrants, options or similar securities with respect thereto) in an aggregate amount not to exceed $1,000,000 in any Fiscal Year of Parent Guarantor), an amount equal to the 100% of the Net Debt Cash Proceeds therefrom of such capital contribution or sale, issuance offering or placement of Equity Interests shall be applied on such date as a mandatory repayment of Term Loans in accordance with the requirements of Sections 5.02(g5.02(i) and (hk).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
Appears in 1 contract
Sources: Credit Agreement (Keane Group, Inc.)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31March 31September 30, 20212025, an aggregate principal amount of Initial 2025 Tranche B-2 Term Loans equal to $5,312,500, 3,292,500 and (ii) on the Initial Maturity Date for Initial 2025 Tranche B-2 Term Loans, the aggregate principal amount of all Initial 2025 Tranche B-2 Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial 2025 Tranche B-2 Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 80,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 40,000,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 80,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes, any Permitted Pari Passu Loans, Refinancing Notes/Loans or Secured Notes (or, in each case, any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase of pari passu Indebtedness from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Loans were made; provided that: (i) repayments of Term SOFR Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by ▇▇▇▇▇▇▇▇ as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, an amount equal to the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02, (ii) to the extent that Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Recovery Event, or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 5.02 and (iii) to the extent that the Net Sale Proceeds of an Asset Sale are attributable to a non-Wholly-Owned Subsidiary, the Net Insurance Proceeds of a Recovery Event are attributable to a non-Wholly-Owned Subsidiary or Excess Cash Flow is attributable to a non-Wholly-Owned Subsidiary, the amount of such Net Sale Proceeds, such Net Insurance Proceeds and such Excess Cash Flow used to calculate the required prepayment pursuant to this Section 5.02 shall not exceed the lesser of (x) an amount corresponding to the proportionate ownership interests in such non-Wholly-Owned Subsidiary or (y) an amount corresponding to the amount of distributions permitted to be made from such non-Wholly-Owned Subsidiary to its direct or indirect parent entity that is a Wholly-Owned Subsidiary for such purposes at the time such prepayment is required to be made.
(k) Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each su
Appears in 1 contract
Sources: Credit Agreement (McGraw Hill, Inc.)
Mandatory Repayments. (ai) In addition to any other mandatory repayments pursuant to terms of this Section 5.02Agreement, the Term Note and/or the Revolving Note, on the third Business Day following each date set forth below (eachupon which any Company or any of its respective Subsidiaries receives any cash proceeds from any capital contribution or any sale or issuance of its equity, a “Scheduled Repayment Date”), Borrower an amount equal to 100% of the Net Equity Proceeds of such capital contribution or sale or issuance of equity shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding applied on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result mandatory repayment in accordance with the requirements of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”)13(y)(iv) below.
(bii) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to terms of this Section 5.02Agreement, within 10 days following the Term note and/or the Revolving Note, on each date on or after the Closing Date upon which Borrower any Company or any of its Restricted respective Subsidiaries receives any cash proceeds from any issuance or incurrence by such Company or any of its Subsidiaries of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans13(l)), an amount equal to 100% of the Net Debt Proceeds therefrom of the respective incurrence of Indebtedness shall be applied on such date as a mandatory repayment in accordance with the requirements of Sections 5.02(gSection 13(y)(iv) and (h)below.
(diii) In addition to any other mandatory repayments pursuant to the terms of this Section 5.02Agreement, within 10 days following the Term note and/or the Revolving Note, on each date on or after the Closing Date upon which Borrower any Company or any of its Restricted respective Subsidiaries receives any Net Sale Proceeds cash proceeds from any Asset Sale (other than in respect of ABL Collateral)Sale, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Proceeds therefrom shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 13(y)(iv) below.
(iv) Each mandatory repayment required by Sections 5.02(g13(y)(i), (ii) and (h); providediii) shall be applied (i) first, however, with respect to an aggregate reduce the principal amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall (with such repayment to be only applied to reduce the amount then remaining Term Loan scheduled repayments in direct order of maturity), (ii) second, to the extent in excess thereof. Notwithstanding of the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be amounts required to be applied as a mandatory repayment hereunder pursuant to reinvest in the purchase preceding clause (i), to reduce the principal amount of assets useful in the business of Borrower all outstanding Overadvances, and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (oriii) third, to the extent applicable, 18 months) after in excess of the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be amounts required to be applied as a mandatory repayment hereunder, an amount equal pursuant to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(gpreceding clauses (i) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to reduce the extent not financed with the proceeds principal amount of long-term Indebtedness (excluding ABL outstanding Revolving Loans Loans.
2. The definitions of “Capital Availability Amount” and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment “Revolving Note” set forth in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period Annex A to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only Security Agreement are each hereby amended by deleting the amount “Fifteen Million Dollars ($15,000,000)” appearing therein and inserting the amount “Eighteen Million Dollars ($18,000,000)” in excess thereoflieu thereof in each case.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal 3. Annex A to the Applicable Asset Sale/Recovery Event Prepayment Percentage of Security Agreement is hereby further amended by added the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.new definitions thereto:
Appears in 1 contract
Sources: Security and Purchase Agreement (Proxymed Inc /Ft Lauderdale/)
Mandatory Repayments. (ai) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31the last Business Day of June 2018 and ending with the last Business Day of the fiscal quarter preceding the Initial Maturity Date for the Initial Term Loans, 2021, an aggregate the Borrower shall be required to repay that principal amount of the Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, 0.25% of the aggregate principal amount of all Initial Term Loans that remain outstanding on such date the Closing Date; provided that the final principal repayment installment of the Initial Term Loans shall be repaid on the Initial Maturity Date for the Initial Term Loans (each such repayment described in clauses (i) and (ii), as the same may which installments shall be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Initial TL Repayment”).
(bii) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (ai)) of Incremental Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Incremental Term Loans to the extent, and on the dates and in the principal amountsamount, set forth in the Incremental Term Loan AmendmentAgreement, Refinancing Term Loan Amendment or Term Loan Extension Amendment applicable theretothereto (each such repayment, as the same may be reduced as provided in this Agreement, including in Sections 2.19, 2.20, 5.01 and 5.02(g), a “Scheduled Incremental TL Repayment”).
(b) If on any date the RL Exposure exceeds the Total Revolving Loan Commitment as then in effect, the Borrower shall prepay on the first Business Day after such date the principal of Swingline Loans and, after all Swingline Loans have been repaid in full or if no Swingline Loans are outstanding, Revolving Loans, in each case, in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and Revolving Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as then in effect, the Borrower agrees to pay to the Administrative Agent at the appropriate Payment Office on the first Business Day after such date an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrower hereunder in the Cash Collateral Account.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after concurrently upon the Closing Date upon which Borrower or any receipt of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries Guarantor receives any Net Sale Proceeds cash proceeds from any Asset Sale (other than in respect of ABL Collateral)Sale, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount any Asset Sale (or a series of related Asset Sales) yielding no more than $10,000,000 in the greater aggregate of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of BorrowerGuarantors, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofif no Event of Default then exists. Notwithstanding the foregoing, the Borrower or may deliver within 5 Business Days of the date of receipt of such Restricted Subsidiary may apply all or Net Sale Proceeds a certificate to the Administrative Agent setting forth that portion of such Net Sale Proceeds that would otherwise be required the Borrower and/or its Subsidiaries, as the case may be, intends to be applied as a mandatory repayment (i) (x) prepay any other Indebtedness secured by Liens ranking senior to the Liens securing the Indebtedness hereunder and in the case of revolving borrowings, to the extent accompanied by permanent reductions in commitments with respect thereto or (y) apply such Net Sale Proceeds in accordance with clause (ii) below or (ii) reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries, in each case to be used in the business of the Borrower and its Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such Restricted Subsidiary its Subsidiaries of such Net Sale Proceeds, the Borrower or such Restricted Subsidiary has its Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(e) [Reserved].
Appears in 1 contract
Sources: Credit Agreement
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), the Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021the last Business Day of the first full fiscal quarter after the Closing Date, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 0.25% of the aggregate principal amount of all Initial Term Loans outstanding on the Closing Date and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $50,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofif no Event of Default then exists. Notwithstanding the foregoing, the Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount equal to the remainder of (i) the Applicable Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all (x) voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement), during such Excess Cash Flow Payment Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to 100% of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Section 5.02(g) and (h); provided, however, with respect to no more than $50,000,000 in the aggregate of such Net Insurance Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment if no Event of Default then exists. Notwithstanding the foregoing, the Borrower may apply such Net Insurance Proceeds to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Sale Proceeds, within 18 months following the date of receipt of such proceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or any of its Restricted Subsidiaries of such Net Insurance Proceeds, the Borrower or any of its Restricted Subsidiaries have not so used all or a portion of such Net Insurance Proceeds otherwise required to be applied as a mandatory repayment pursuant to this sentence, the remaining portion of such Net Insurance Proceeds shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made; provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of the Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of the Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds may be retained by the Borrower in accordance with this Agreement.
Appears in 1 contract
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), the Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, commencing June 30, 2020 (a) commencing with December 31, 2021a “Scheduled Repayment Date”), an aggregate principal amount of Initial Term B Loans equal to $5,312,500, 0.25% of the aggregate principal amount of all Term B Loans outstanding on the Amendment No. 1 Effective Date and (ii) on the Initial Term B Maturity Date for Initial Term LoansDate, the aggregate principal amount of all Initial Term B Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.202.19, 2.212.20 or in connection with voluntary prepayments as provided in Section 5.01 (including, 5.01 for the avoidance of doubt, the prepayment made in connection with the ASCO Transactions as contemplated by the definition thereof) or mandatory prepayments as provided in Section 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”). For the avoidance of doubt, after giving effect to the prepayment made in connection with the ASCO Transactions as contemplated by the definition thereof, no additional repayments shall be required under this Section 5.02(a)(i).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans and Term B Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect ABL Collateral and other than the ASCO Sale, the Net Sale Proceeds of ABL Collateralwhich shall be permitted to be applied by the Borrower to finance the ASCO Transactions or for other corporate purposes of the Borrower), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $50,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofif no Event of Default then exists. Notwithstanding the foregoing, the Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period (other than the Net Sale Proceeds of the ASCO Sale, which shall be permitted to be applied by the Borrower to finance the ASCO Transactions or for other corporate purposes of the Borrower).
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount equal to the remainder of (i) the Applicable Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all (x) voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that would rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement), during such Excess Cash Flow Payment Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to 100% of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Section 5.02(g) and (h); provided, however, with respect to no more than $50,000,000 in the aggregate of such Net Insurance Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment if no Event of Default then exists. Notwithstanding the foregoing, the Borrower may apply such Net Insurance Proceeds to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Sale Proceeds, within 18 months following the date of receipt of such proceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or any of its Restricted Subsidiaries of such Net Insurance Proceeds, the Borrower or any of its Restricted Subsidiaries have not so used all or a portion of such Net Insurance Proceeds otherwise be required to be applied as a mandatory repayment hereunder pursuant to this sentence, the remaining portion of such Net Insurance Proceeds shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not , as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(d5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a result given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the application applicable Tranche in direct order of the leverage-based step-down in the definition maturity of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”such Scheduled Repayments.
(eh) With respect to each repayment of Term Loans required by this Section 5.02, the Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made; provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on each the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow Payment Dateattributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, an amount (rule or regulation or applicable organizational documents of such amount Foreign Subsidiary from being repatriated to the “United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent so affected will not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are be required to be made applied to repay Term Loans at the times provided in connection with this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any prepayment, buyback or redemption such restrictions on repatriation and/or minimize any such costs of Indebtedness pursuant to clause (ii) above, in each case prepayment and/or use the other cash sources of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for to make the most recently ended Test Periodrelevant prepayment), andand if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such case, repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the required prepayment shall be only repayment of the amount in excess thereof.
(f) In addition to any other mandatory repayments Term Loans pursuant to this Section 5.02, within 10 days following each date on 5.02 or after (ii) to the Closing Date upon which extent that the Borrower or has reasonably determined in good faith that repatriation of any of its Restricted Subsidiaries receives or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds from of any Foreign Asset Sale or Foreign Recovery Event (other than in or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences with respect of ABL Collateral)to such Net Sale Proceeds, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from or Excess Cash Flow, such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); providedNet Sale Proceeds, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrower and its Restricted Subsidiaries shall notify the Administrative Agent in writing of any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and any required prepayment shall be only provide the amount in excess thereofof such repayment. Notwithstanding The Administrative Agent will promptly notify the foregoing, Borrower or Lenders of the contents of the Borrower’s repayment notice and of such Restricted Subsidiary Lender’s pro rata share of any repayment. Each Lender may apply reject all or a portion of its pro rata share of any mandatory repayment (such Net Insurance Proceeds that would otherwise be declined amounts, the “Declined Proceeds”) of Term Loans required to be applied as made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, “Rejection Notice”) to the extent applicable, 18 monthsAdministrative Agent and the Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by Borrower such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Restricted Subsidiary Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds may be retained by the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment Borrower in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) periodthis Agreement.
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Mandatory Repayments. (a) In addition to
6.2.1 Without limiting any other mandatory repayments pursuant provision hereunder, including the right of the Lenders to this Section 5.02make demand in respect of any obligations under the Wholesale Flooring Facility and the Wholesale Leasing Facility at any time, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to apply the Administrative Agent for following amounts or make the ratable account of following mandatory repayments against the Lenders (i) on the last Business Day of each March, June, September and December, Obligations as set out below:
(a) commencing with December 31If the aggregate outstanding Advances under any Credit Facility exceeds the Credit Facility Limit applicable to such Credit Facility, 2021or any carveout or sublimit thereof (after giving effect to Section 2.4.3, if applicable), then such Credit Facility shall be repaid by an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).excess;
(b) In addition to So long as any other mandatory repayments pursuant to this Section 5.02Obligations or the Commitments remain outstanding under the Revolving Facility and/or the CapEx Facility, Borrower shall be required to make, with respect to each new Tranche one hundred percent (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)100%) of Term Loans the Net Cash Proceeds from any incurrence of Debt (excluding proceeds from the issuance of the New Senior Unsecured Notes to the extent then outstandingused to refinance Senior Unsecured Notes) by any Obligor from a Person other than an Obligor shall be applied to the repayment of outstanding Advances under the Revolving Facility and the CapEx Facility in the order specified in Section 6.2.2, scheduled amortization payments except to the extent such Net Cash Proceeds are applied by the Borrowers to pay for Capital Expenditures that are subject to the Security within 60 days of receipt of such Tranche of Term Loans to Net Cash Proceeds, until the extent, Revolving Facility and on the dates and CapEx Facility are paid in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.full;
(c) In addition to So long as any Obligations or the Commitments remain outstanding under the Revolving Facility and/or the CapEx Facility, if the Net Cash Proceeds from the sale or disposition of assets (including Owned Real Property), other mandatory repayments than Permitted Dispositions under clauses (a), (b) and/or (c) of that definition, are not re-invested by the Borrowers in replacement or similar business assets (pursuant to this Section 5.02a Permitted Acquisition or Permitted Development Expenditures) that are subject to the Security or otherwise reinvested in the business of the Obligors within 365 days of such sale or disposition, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to then 100% of the Net Debt Cash Proceeds therefrom from such sale or disposition of assets greater than or equal to $5,000,000 in the aggregate for all Obligors in any Fiscal Year shall be applied to the outstanding principal amount of Advances under the Revolving Facility and the CapEx Facility in the order specified in Section 6.2.2, until the Revolving Facility and the CapEx Facility are paid in full;
(d) Net Cash Proceeds from insurance shall be applied as a mandatory repayment follows:
(i) to the extent the proceeds relate to inventory of the Borrowers financed pursuant to the Wholesale Flooring Facility, then such proceeds shall first be applied (on the date of receipt thereof) against the Advances under the Wholesale Flooring Facility until paid in full; with any balance being applied against outstanding Advances under the Revolving Facility and the CapEx Facility in the order specified in Section 6.2.2;
(ii) to the extent the proceeds relate to inventory of the Borrowers financed pursuant to the Wholesale Leasing Facility, then such proceeds shall first be applied (on the date of receipt thereof) against the Advances under the Wholesale Leasing Facility until paid in full; with any balance being applied against outstanding Advances under the Revolving Facility and the CapEx Facility in the order specified in Section 6.2.2; and
(iii) to the extent the proceeds do not relate to inventory of the Borrowers financed pursuant to the Wholesale Flooring Facility or the Wholesale Leasing Facility (or any balance remains after application thereof in accordance with clauses (i) or (ii) above), then so long as any Obligations or the requirements Commitments remain outstanding under the Revolving Facility and/or the CapEx Facility, 100% of Sections 5.02(g) such Net Cash Proceeds from insurance that are not re-invested in the repair or replacement of assets that are subject to the Security within 365 days from the date of such damage or loss shall be applied against the outstanding Advances under the Revolving Facility and (h)the CapEx Facility in the order specified in Section 6.2.2, until the Revolving Facility and the CapEx Facility are paid in full.
6.2.2 Mandatory repayments which are to be applied to the Revolving Facility and the CapEx Facility pursuant to Sections 6.2.1(b), (c) or (d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment follows:
(a) during the Original CapEx Tranche Availability Period, first to the Revolving Facility (until repaid in accordance with full), then to the requirements Original CapEx Tranche of Sections 5.02(gthe CapEx Facility (until repaid in full), and then to the Accordion CapEx Tranche of the CapEx Facility;
(b) after the Original CapEx Tranche Availability Period, if the CapEx Accordion Date has not occurred, first to the Original CapEx Tranche of the CapEx Facility (until repaid in full), and then to the Revolving Facility; provided that the Net Cash Proceeds from the sale or disposition of assets pursuant to clauses (d) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Permitted Dispositions may be applied first to the Revolving Facility (until repaid in full); and
(c) after the Original CapEx Tranche Availability Period, if the CapEx Accordion Date has occurred, then (i) during the Accordion CapEx Tranche Availability Period, first to the Original CapEx Tranche of the CapEx Facility (until repaid in full), then to the Revolving Facility (until repaid in full), and then to the Accordion CapEx Tranche of the CapEx Facility; and (ii) after the Accordion CapEx Tranche Availability Period, first to the Original CapEx Tranche of the CapEx Facility (until repaid in full), then to the Accordion CapEx Tranche of the CapEx Facility (until repaid in full), and then to the Revolving Facility; provided that, in each case, the Net Cash Flow,” Proceeds from the aggregate amount sale or disposition of all cash payments made assets pursuant to clauses (d) and (e) of the definition of Permitted Dispositions may be applied first to the Revolving Facility (until repaid in respect of any Permitted Acquisitions and other Investments permitted full).
6.2.3 The mandatory prepayments pursuant to Section 10.05 6.2.1 shall be paid within ten (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately 10) Banking Days following the making receipt of such Investment, was and remains proceeds or Net Cash Proceeds or such later date upon which a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are prepayment is required to be made under Section 6.2.1 or, in connection with any prepayment, buyback or redemption the case of Indebtedness pursuant to mandatory prepayments under clause (iia) aboveof Section 6.2.1, in each case immediately upon the earlier of (a) the foregoing clauses Applicable Borrower becoming aware of, and (iib) – the Agent giving notice of, any such excess.
6.2.4 Any mandatory repayments of outstanding Advances under the Credit Facilities (vii), made during other than the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed CapEx Facility) required to be made during pursuant to Section 6.2.1 shall not constitute a permanent reduction of such Credit Facility and shall be made by the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior Applicable Borrowers without prejudice to the time Applicable Borrowers' rights to reborrow amounts under such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Credit Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements terms of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereofthis Agreement.
(f) In addition to any other 6.2.5 Any mandatory repayments of outstanding Advances under the CapEx Facility required to be made pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event 6.2.1 shall be applied as a mandatory repayment to the Advances under the applicable Tranche of the CapEx Facility in accordance with the requirements inverse order of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of BorrowerAdvance Date applicable thereto, such Net Insurance Proceeds shall not give rise to that Advances made on a mandatory repayment and later date are repaid first before any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, Advances made on an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) periodearlier date.
Appears in 1 contract
Mandatory Repayments. (a) In addition If on any date the sum of (I) the aggregate outstanding principal amount of all Revolving Loans (after giving effect to any all other mandatory repayments pursuant thereof on such date), (II) the aggregate outstanding principal amount of all Swingline Loans (after giving effect to this all other repayments thereof on such date) and (III) the aggregate amount of all Letter of Credit Outstandings exceeds the Total Available Revolving Loan Commitment at such time, then the Borrower shall prepay, without premium or penalty (subject, however, to Section 5.022.10), on each the first Business Day after such date set forth below (eachthe principal of outstanding Swingline Loans and, a “Scheduled Repayment Date”)after all Swingline Loans have been repaid in full or if no Swingline Loans are outstanding, Revolving Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and Revolving Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the Total Available Revolving Loan Commitment at such time, the Borrower shall be required to repay pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash and/or Cash Equivalents to be held as security for the ratable account all Obligations of the Borrower to the Issuing Lenders (i) on and the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal Lenders hereunder in a cash collateral account to $5,312,500, and (ii) on be established by the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”)Administrative Agent.
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, (x) on each Quarterly Payment Date, beginning with the Quarterly Payment Date occurring in June, 2011 and ending with the Quarterly Payment Date occurring in December, 2015, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial repay a principal amount of Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments equal to ¼ of such Tranche 1% of the aggregate initial principal amount of all Term Loans incurred by the Borrower pursuant to the extent, and Section 2.01(a) on the dates Initial Borrowing Date and in (y) on the principal amounts, set forth in the Incremental Term Loan AmendmentMaturity Date, Refinancing the Borrower shall be required to repay in full the entire principal amount of the Term Loans then outstanding (each Quarterly Payment Date described above and the Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments Maturity Date, a “Scheduled Term Loan Repayment Date” and with each such repayment pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)5.02(b), an amount equal to 100% of as the Net Debt Proceeds therefrom shall same may be applied reduced as provided in Section 5.01(a), 5.01(b) or 5.02(h), a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h“Scheduled Term Loan Repayment”).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
Appears in 1 contract
Sources: Credit Agreement (Radio One, Inc.)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, [reserved] and (ii) on the Initial Maturity Date for Initial Term B-3 Loans, the aggregate principal amount of all Initial Term B-3 Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term B-3 Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofLoans. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Lead Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments(x) voluntary prepayments of Term Loans, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower Refinancing Notes and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following Indebtedness under the making of such Investment, was and remains a Restricted SubsidiaryABL Credit Agreement), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Insurance Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereofrepayment. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Sale Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, Lead Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Term Loans were made; provided that: (i) repayments of Term SOFR Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrowers hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Lead Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that Lead Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrowers shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of Lead Borrower’s repayment notice and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled.
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Sources: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), the Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, commencing December 29, 2023June 28, 2024 (a) commencing with December 31, 2021a “Scheduled Repayment Date”), an aggregate principal amount of Initial Term B-12 Loans equal to $5,312,500, 0.25% of the aggregate principal amount of all Term B-12 Loans outstanding on the Amendment No. 34 Effective Date and (ii) on the Initial Term B-12 Maturity Date for Initial Term LoansDate, the aggregate principal amount of all Initial Term B-12 Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.202.19, 2.21, Section 2.20 or in connection with voluntary prepayments as provided in Section 5.01 or mandatory prepayments as provided in Section 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term B-12 Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than 10.04, Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Sale Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder pursuant to this sentence shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iiix) the aggregate amount of all Capital Expenditures made or accrued by Borrower voluntary prepayments (including buybacks and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(iiprepayments in connection with Section 5.01(b)) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions Term Loans, Refinancing Notes and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other than Investments Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in Cash Equivalents or in Borrower or a Person thateach case, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted accompanied by Sections 10.03(iii)a permanent reduction in commitments therefor, (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of (x) $27,500,000 50,000,000 and 5.0(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 ten (10) days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event with (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Insurance Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, the Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes or Permitted Pari Passu Loans (or, in either case, any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Term Loans were made; provided that: (i) repayments of Term SOFR Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of the Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation other than any such taxes already taken into account by the definition of “Net Sale Proceeds”, “Net Insurance Proceeds” or “Excess Cash Flow”, as applicable) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax cost consequences with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three (3) Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of the Borrower’s repayment notice and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds may be retained by the B
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Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), the Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, commencing June 30, 2020 (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled RepaymentRepayment Date”)., an 63
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than 10.04, Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
. (d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Sale Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder pursuant to this sentence shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
Appears in 1 contract
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.024.02, on each date set forth below (each, a ““ Scheduled Repayment Date”), the Borrower shall be required to repay to the Administrative Agent for the ratable account full principal amount of the Lenders Loans in seven consecutive payments (such repayment amounts expressed as (i) on a percentage of the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate initial principal amount of Initial Term Loans equal to $5,312,500the Loans, and plus (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans PIK Interest that remain outstanding has been capitalized through the applicable Scheduled Repayment Date and remains unpaid as of such date) on such each repayment date set forth below (each such repayment described in clauses (i) and (ii)repayment, as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.144.01, a “Scheduled Repayment”).): The date that is the seventh Quarterly Payment Date following the Closing Date 14.29% The date that is the eighth Quarterly Payment Date following the Closing Date 14.29% The date that is the ninth Quarterly Payment Date following the Closing Date 14.29% The date that is the tenth Quarterly Payment Date following the Closing Date 14.29% The date that is the eleventh Quarterly Payment Date following the Closing Date 14.29% The date that is the twelfth Quarterly Payment Date following the Closing Date 14.29% Facility Maturity Date Remaining principal balance
(b) In addition to any other mandatory repayments pursuant to this Section 5.024.02, no later than one (1) Business Day following each date on or after the Closing Date upon which the (i) Borrower shall be required to make, with respect to each new Tranche or any Main Subsidiary receives any cash proceeds from any incurrence of Indebtedness (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstandingconstituting Permitted Debt) by the Borrower or such Main Subsidiary, scheduled amortization payments the Borrower shall apply an amount equal to the Net Cash Proceeds of such Tranche incurrence of Term Loans Indebtedness (other than to the extent, and on extent constituting Permitted Debt) as a mandatory repayment in accordance with the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable theretorequirements of Section 4.02(e).
(c) In addition to any other mandatory repayments pursuant to this Section 5.024.02, within 10 days following on each date on or after the Closing Date upon which Net Cash Proceeds of Asset Sales (other than proceeds otherwise invested in the business of the Borrower and/or any Main Subsidiary to purchase replacement assets within ninety (90) days of the receipt of any such Net Cash Proceeds (or within one-hundred eighty (180) days if a binding irrevocable commitment has been executed within the initial 90-day period for such purchases) that exceed $5,000,000 in any Fiscal Year of the Borrower are received by the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans))Main Subsidiary, an amount equal to one-hundred percent (100% %) of the such excess Net Debt Cash Proceeds therefrom from such Asset Sale shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (hSection 4.02(e).
(d) In addition to any other mandatory repayments pursuant to this Section 5.024.02, within 10 days following on each date on or after the Closing Date upon which any Net Loss Proceeds in excess of $5,000,000 in any Fiscal Year are received by the Borrower and/or any Main Subsidiary, to the extent that such Net Loss Proceeds are not applied for Restoration or repairs in respect of the business of the Borrower or any Main Subsidiary, within ninety (90) days following the receipt of its Restricted Subsidiaries receives any such Net Sale Loss Proceeds from any Asset Sale (other than or within one-hundred eighty (180) days if a binding irrevocable commitment has been executed within the initial 90 day period in respect of ABL Collateralthe Restoration or repairs), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage one-hundred percent (100%) of the such excess Net Sale Loss Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (hSection 4.02(e); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition Each amount required to any other mandatory repayments be applied pursuant to this Section 5.02Sections 4.02(a) through (d), on (f)(ii) and (g) shall be applied, in each Excess Cash Flow Payment Datecase, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made each Lender in respect of any Permitted Acquisitions and other Investments permitted pursuant its outstanding Loans, on a pro rata basis, concurrently to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following repay the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate outstanding principal amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04)accrued interest due and payable on the prepaid amount, shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event plus (other than in respect the case of ABL Collateralrepayments pursuant to Section 4.02(a), an ) the applicable Make-Whole Premium amount. The amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event each principal repayment of Loans made as required by Sections 4.02(b) through (d) and (g) shall be applied as to reduce the then-remaining Scheduled Repayments of the Loans on a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) periodpro rata basis.
Appears in 1 contract
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) with respect to the Initial Term Loans (other than 2021 Incremental Term Loans), on the last Business Day of each March, June, September and December, (a) commencing with December 31June 30, 20212021 and ending on the 2021 Incremental Term Loans Conversion Date, an aggregate principal amount of equal to $1,625,000 and (ii) with respect to the Initial Term Loans (including, for the avoidance of doubt, 2021 Incremental Term Loans), on the last Business Day of each March, June, September and December, commencing after the 2021 Incremental Term Loans Conversion Date, an aggregate principal amount equal to $5,312,5002,254,722.93, and (iiiii) on the Initial Maturity Date for Initial Term Loans (including, for the avoidance of doubt, 2021 Incremental Term Loans), the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and through (iiiii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”). 2021 Incremental Term Loans shall not be subject to mandatory repayments pursuant to this Section 5.02 prior to the 2021 Incremental Term Loans Conversion Date.
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofLoans. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Lead Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments(x) voluntary prepayments of Term Loans, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower Refinancing Notes and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following Indebtedness under the making of such Investment, was and remains a Restricted SubsidiaryABL Credit Agreement), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Insurance Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereofrepayment. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Sale Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, Lead Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Term Loans were made; provided that: (i) repayments of Term SOFR Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrowers hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Lead Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that Lead Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost Exhibit A-71 consequences, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrowers shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of Lead Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled.
Appears in 1 contract
Sources: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021June 2018, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 2,100,000 and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $22,500,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofLoans. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Lead Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments(x) voluntary prepayments of Term Loans, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower Refinancing Notes and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following Indebtedness under the making of such Investment, was and remains a Restricted SubsidiaryABL Credit Agreement), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $22,500,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Insurance Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereofrepayment. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Sale Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, Lead Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made; provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrowers hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Lead Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that Lead Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrowers shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of Lead Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds, to the extent retained by Lead Borrower following compliance with any provisions of the Second Lien Credit Agreement requiring prepayments or offers to prepay with Declined Proceeds, are referred to herein as “Retained Declined Proceeds”.
Appears in 1 contract
Sources: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Mandatory Repayments. (a) In addition Borrower shall repay the Term Loan in quarterly installments (the "Scheduled Installments") each equal to one-twentieth (1/20th) of the principal balance of the Term Loan as of the expiration of the Disbursement Period (and after giving effect to all Advances). The first Scheduled Installment will be due on October 31, 1998 and a Scheduled Installment will be due every Quarterly Payment Date thereafter until the Maturity Date. The remaining unpaid principal balance of the Term Loan will be due on the Maturity Date. At the request of Agent at any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”)time after the Disbursement Period expires, Borrower shall will execute an acceptance and acknowledgment of a schedule to be required attached to repay to each Term Note setting forth the Administrative Agent for actual original principal amount thereof and the ratable account of the Lenders (i) on the last Business Day amount and due date of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”)Installment.
(b) In addition to any other mandatory repayments pursuant to this Section 5.022.2, Borrower on each date on or after the Effective Date upon which Parent or ALC or any of their Subsidiaries receives proceeds from any incurrence by ALC or any of its Subsidiaries of Indebtedness for borrowed money (other than Indebtedness for borrowed money permitted to be incurred under Section 9.5 of the Credit Agreement), an amount equal to one hundred percent (100%) of the cash proceeds of the respective incurrence of Indebtedness (net of underwriting or placement discounts and commissions and other reasonable costs associated therewith) shall be required to make, with respect to each new Tranche (i.e., other than Initial due and payable and shall be first applied as a repayment of the Term Loans, which are addressed Loan in the preceding clause (a)) inverse order of Term Loans maturity and the balance to any outstanding Indebtedness under the Credit Agreement to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable theretorequired thereby.
(c) In addition to any other mandatory repayments pursuant to this Section 5.022.2, within 10 days following on each date on or after the Closing Effective Date upon which Borrower Parent or ALC or any of its Restricted Subsidiaries receives any cash proceeds from any issuance sale of ALC's or incurrence any of Indebtedness its Subsidiaries' capital stock or newly issued shares or assets (other than Indebtedness permitted excluding (i) sales of inventory in the ordinary course of business, (ii) sales of equipment and related software to be incurred customers of ALC or any of its Subsidiaries in the ordinary course of business pursuant to Section 10.04 the terms of the respective wagering systems equipment contracts or similar contracts to which such Person is a party, and (other than Refinancing Term Loans and Refinancing Notes/Loans)iii) sales of assets in the ordinary course of business), an amount equal to one hundred percent (100% %) of the Net Debt Sale Proceeds therefrom shall be due and payable and shall be first applied as a repayment of the Term Loan in the inverse order of maturity and the balance shall be applied to any outstanding Indebtedness under the Credit Agreement to the extent required thereby, provided that as long as no Default or Event of Default then exists, no such mandatory repayment shall be required to the extent that Borrower has delivered a certificate to Agent on or prior to such date stating that such proceeds shall be reinvested by Borrower in accordance with the requirements assets of Sections 5.02(g) ALC and (h)its Subsidiaries within nine months following the date of such sale of assets.
(d) In addition to any other mandatory repayments pursuant to this Section 5.022.2, within 10 ten (10) days following each date on or after the Closing Effective Date upon which Borrower
(1) if the Recovery Event is with respect to the assets of ALC or its Subsidiaries, as a repayment of the Term Loan in the inverse order of maturity with any balance as a repayment of the Indebtedness then outstanding under the Credit Agreement to the extent required thereby and (2) if the Recovery Event is with respect to assets other than those of ALC or its Subsidiaries, as a repayment of the Indebtedness then outstanding under the Credit Agreement to the extent required thereby with any balance as a repayment of the Term Loan in inverse order of maturity, provided that so long as no Default or Event of Default then exists, no such -------- mandatory repayment shall be required to the extent that Borrower has delivered a certificate to Agent on or prior to such date stating that such proceeds shall be used to replace or restore any properties or assets in respect of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale which such proceeds were paid within twelve months following the date of such Recovery Event (which certificate shall set forth the estimates of the proceeds to be so expended); and provided further, that (i) if the amount of such proceeds exceeds -------- ------- Five Million Dollars ($5,000,000) (other than as a result of a Recovery Event that has occurred with respect to property located at a racetrack or any other wagering facility, including but not limited to, property located at any CLC location, in respect which case such proceeds shall be applied as provided elsewhere in this Section 2.2(d) without regard to the terms of ABL Collateralthis subclause (i)), then an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage portion in excess of the Net Sale Proceeds therefrom Five Million Dollars ($5,000,000) shall be applied as a mandatory repayment provided in accordance with the requirements of Sections 5.02(gthis Section 2.2(d) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply ii) if all or a any portion of such Net Sale Proceeds that would otherwise be proceeds not required to be applied as a mandatory repayment hereunder to reinvest provided in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries immediately preceding proviso are not so used within 12 twelve months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary the respective Recovery Event, then on the date which is the first anniversary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, the respective Recovery Event an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder proceeds not so used shall be applied as a mandatory repayment provided in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”2.2(d).
(e) In addition to any other mandatory repayments pursuant to this Section 5.022.2, on within one hundred (100) days after the end of each Excess Cash Flow Payment Datefiscal year of ALC, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of fifty percent (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii50%) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent which ALC Excess Cash Flow for such period is equal to or less than the greater of fiscal year exceeds Five Hundred Thousand Dollars ($27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment 500,000) shall be only due and payable and applied as a repayment of the amount Term Loan in excess thereofthe inverse order of maturity.
(f) In addition With respect to any other mandatory each repayment of the Term Loan required by this Section 2.2, Borrower may designate the Types and amount of each Term Loan Portion which is to be repaid and, in the case of Eurodollar Portions, the specific Eurodollar Portion to be repaid; provided that (i) repayments of -------- Eurodollar Portion pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall 2.2 may only be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) made on the last day of an Interest Period applicable thereto unless all Eurodollar Portions with Interest Periods ending on such 12-month date of required repayment and all Base Rate Portions have been paid in full, and (orii) if any repayment of a Eurodollar Portion made pursuant to a single Advance shall reduce the outstanding Eurodollar Portion having the same Interest Period to an amount less than the Minimum Borrowing Amount, such Eurodollar Portion shall be converted at the end of the then current Interest Period into a Base Rate Portion. In the absence of a designation by Borrower as described in the preceding sentence, Agent shall, subject to the extent applicableabove, 18-monthmake such designation in its sole discretion.
(g) periodNotwithstanding anything to the contrary contained elsewhere in this Agreement, the then outstanding principal balance of the Term Loan shall be repaid in full on the Maturity Date.
Appears in 1 contract
Sources: Term Loan Agreement (Autotote Corp)
Mandatory Repayments. (a) In addition to If any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower Indebtedness shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower incurred by Holdings or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than any Indebtedness permitted to be incurred pursuant to in accordance with Section 10.04 9.4 (other than Refinancing Term Loans Indebtedness incurred pursuant to Sections 9.4(b)(iv) and Refinancing Notes/Loans(b)(v) to the extent provided therein)), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Debt Cash Proceeds therefrom thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Loans as a mandatory repayment set forth in accordance with the requirements of Sections 5.02(g) and (h)this Section 5.2.
(db) In addition to If, for any other mandatory repayments pursuant to this Section 5.02Excess Cash Flow Period, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral)there shall be Excess Cash Flow, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable applicable ECF Prepayment Percentage of the such Excess Cash Flow for the related Excess Cash Flow Payment Period less minus (ii) the sum of:
(A) to the extent not funded with the proceeds of long-term Indebtedness (other than revolving loans), the aggregate amount of all (I) Purchases by any Permitted Eligible Assignee pursuant to a Dutch Auction or open market purchases (in each case, determined by the actual cash purchase price paid by such Permitted Eligible Assignee for such Purchase and not the par value of the Loans purchased by such Permitted Eligible Assignee), (II) Purchases (as defined in the First Lien Credit Agreement (or the definitive documentation governing any other Indebtedness secured by a Lien on the Collateral on a senior basis to the Obligations)) by any Permitted Eligible Assignee (as defined in the First Lien Credit Agreement (or the definitive documentation governing any other Indebtedness secured by a Lien on the Collateral on a senior basis to the Obligations)) pursuant to a Dutch Auction (as defined in the First Lien Credit Agreement (or the definitive documentation governing any other Indebtedness secured by a Lien on the Collateral on a senior basis to the Obligations)) (in each case, determined by the actual cash purchase paid by such Permitted Eligible Assignee (as defined in the First Lien Credit Agreement (or the definitive documentation governing any other Indebtedness secured by a Lien on the Collateral on a senior basis to the Obligations)) for such Purchase (as defined in the First Lien Credit Agreement (or the definitive documentation governing any other Indebtedness secured by a Lien on the Collateral on a senior basis to the Obligations)) and not the par value of the First Lien Term Loans purchased by such Permitted Eligible Assignee (as defined in the First Lien Credit Agreement (or the definitive documentation governing any other Indebtedness secured by a Lien on the Collateral on a senior basis to the Obligations))), (III) the aggregate amount of all Voluntary Pari Passu Debt Prepaymentsoptional prepayments of Loans, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) including the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback therewith and (IV) the aggregate amount of all optional prepayments of First Lien Term Loans or redemption optional prepayments of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied (as a mandatory repayment defined in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event First Lien Credit Agreement (other than in respect of ABL Collateralany Revolving Loans (as defined in the First Lien Credit Agreement) to the extent there is not an equivalent permanent reduction in commitments thereunder), an including the aggregate amount equal of any premium, make-whole or penalty payments actually paid in cash in connection therewith, in each case, (x) to the Applicable Asset Sale/Recovery Event Prepayment Percentage extent actually paid in cash during such Excess Cash Flow Period (or, at the option of the Net Insurance Proceeds from Borrower, after the end of such Recovery Event Excess Cash Flow Period if paid prior to the Excess Cash Flow Application Date, provided that no such amount shall be applied as a mandatory repayment credited against any payments due pursuant to this Section 5.2(b) in accordance with the requirements of Sections 5.02(gsubsequent Excess Cash Flow Period) and (hy) to the extent such term loans, revolving loans or Loans are secured by a Lien on the Collateral that is pari passu with (or senior to) the Liens on the Collateral securing the Initial Loans; plus
(B) to the extent not funded with proceeds of Indebtedness (other than revolving loans); provided, however, with respect to an the aggregate amount of no more than actually paid by the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year cash during such Excess Cash Flow Period (or, at the option of the Borrower, after the end of such Net Insurance Proceeds shall not give rise Excess Cash Flow Period if paid prior to a mandatory repayment and any required prepayment the Excess Cash Flow Application Date, provided that no such amount shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required credited against any payments due pursuant to be applied as a mandatory repayment hereunder to reinvest this Section 5.2(b) in the purchase subsequent Excess Cash Flow Period) on account of assets useful in Consolidated Capital Expenditures and software development and capitalized development costs; plus
(C) to the business extent not funded with proceeds of Indebtedness (other than revolving loans), the aggregate amount actually paid by the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of in cash during such Net Insurance Proceeds Excess Cash Flow Period (or, at the option of the Borrower, after the end of such Excess Cash Flow Period if within paid prior to the Excess Cash Flow Application Date, provided that no such 12-month periodamount shall be credited against any payments due pursuant to this Section 5.2(b) in the subsequent Excess Cash Flow Period) on account of Permitted Acquisitions; plus
(D) to the extent not funded with proceeds of Indebtedness (other than revolving loans) and not deducted in arriving at Consolidated Net Income for such Excess Cash Flow Period, the aggregate amount of all Investments (other than those of the type set forth in clause (a) or clause (b) of the definition of “Permitted Investments”) made in cash during such Excess Cash Flow Period (or, at the option of the Borrower, after the end of such Excess Cash Flow Period if made prior to the Excess Cash Flow Application Date, provided that no such amount shall be credited against any payments due pursuant to this Section 5.2(b) in the subsequent Excess Cash Flow Period); plus
(E) to the extent not funded with the proceeds of Indebtedness (other than revolving loans) and not deducted in arriving at Consolidated Net Income for such Excess Cash Flow Period, Restricted Payments permitted hereunder and actually made in cash during such Excess Cash Flow Period (or, at the option of the Borrower, after the end of such Excess Cash Flow Period if made prior to the Excess Cash Flow Application Date, provided that no such amount shall be credited against any payments due pursuant to this Section 5.2(b) in the subsequent Excess Cash Flow Period); plus
(F) to the extent not funded with proceeds of Indebtedness (other than revolving loans) and not deducted in arriving at Consolidated Net Income for such Excess Cash Flow Period, at the option of the Borrower, the aggregate consideration to be paid by the Borrower or any of and its Restricted Subsidiaries enters in cash pursuant to binding contracts entered into prior to the Excess Cash Flow Application Date relating to Consolidated Capital Expenditures and software development and capitalized development costs and, Investments and Restricted Payments, in each case that is certified in writing by a binding commitment Responsible Officer of the Borrower to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed the Administrative Agent to such plan of reinvestment); provided, further, that if within 12 months be contractually obligated (or, in the case of Consolidated Capital Expenditures, budgeted) to be paid within 365 days after such certificate (provided that (x) no such amount shall be credited against any payments due pursuant to this Section 5.2(b) in the subsequent Excess Cash Flow Period and (y) amounts deducted pursuant to this clause (F) and not actually paid in such 365-day period shall be prepaid in the subsequent Excess Cash Flow Period); plus
(G) cash Restructuring Charges excluded from Consolidated Net Income for such Excess Cash Flow Period pursuant to clause (i) of the definition thereof made prior to the extent applicablerelevant Excess Cash Flow Application Date (provided that no such amount shall be credited against any payments due pursuant to this Section 5.2(b) in the subsequent Excess Cash Flow Period); plus
(H) the greater of (x) $18,750,000 and (y) 6.25% of LTM EBITDA, 18 months) after shall, on the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceedsrelevant Excess Cash Flow Application Date, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied toward the prepayment of the Loans as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment set forth in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.this Section 5.2;
Appears in 1 contract
Sources: Second Lien Credit and Guaranty Agreement (Informatica Inc.)
Mandatory Repayments. (a) In On any day on which the sum of (I) the aggregate outstanding principal amount of all Revolving Loans (after giving effect to all other repayments thereof on such date) and (II) the aggregate amount of all Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment at such time, the Borrower shall prepay on such day Revolving Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment at such time, the Borrower shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash and/or Cash Equivalents to be held as security for all Obligations of the Borrower to the Issuing Lenders and the Lenders hereunder in a cash collateral account to be established by the Administrative Agent.
(b) Subject to Section 9.16, in addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below the fifteenth calendar day (eachor, if not a “Scheduled Repayment Date”)Business Day, Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (iimmediately preceding Business Day) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate the Borrower shall be required to repay $6,250,000 of the principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, to the extent then outstanding, and the aggregate principal amount of all Initial Term Loans that remain then outstanding shall be repaid on such date the Term Loan Maturity Date (each such repayment described in clauses (i) and (ii)date, a “Scheduled Term Loan Repayment Date”; each such repayment, as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 5.01(a) or 5.02(g5.01(b), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Term Loan Repayment”).
(bc) In addition If a Change of Control occurs, the Borrower shall promptly prepay all outstanding Term Loans of each Term Lender at a purchase price in cash equal to any other mandatory repayments 101% of the principal amount of such Term Loans plus accrued and unpaid interest, if any, to, but excluding, the date of purchase.
(d) All Net Available Cash from Asset Dispositions that is not applied or invested (or committed pursuant to this a written agreement to be applied or invested) as provided in Section 5.0210.05(c) within 365 days after receipt of such Net Available Cash (or in the case of any amount committed to be so applied or reinvested, which are not actually so applied or reinvested within 180 days following such 365 day period) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Borrower shall be required to make, offer to prepay Term Loans in accordance with respect Section 5.02(e) in an amount equal to each new Tranche the Loan First Lien Percentage (i.e., other than Initial Term Loans, determined as of a date selected by the Borrower that is within 10 days prior to the date on which are addressed a Prepayment Option Notice is given to the Administrative Agent in the preceding clause (aaccordance with Section 5.02(e)) of such Excess Proceeds to prepay the maximum principal amount of the Term Loans to that may be prepaid out of the extent then outstanding, scheduled amortization payments Loan First Lien Percentage of such Tranche Excess Proceeds (such amount, the “Prepayment Amount”) and such Excess Proceeds so prepaid shall be applied as a mandatory prepayment in accordance with the requirements of Term Loans to the extent, 5.02(g) and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto(h).
(ce) In addition Notwithstanding anything to the contrary in 13.06, within one Business Day of receiving Excess Proceeds in accordance with Section 5.02(d), the Borrower shall give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit M, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the Loans of such Term Lender by an amount equal to such Term Lender’s pro rata (subject to rounding) portion of the Prepayment Amount so indicated in such Term Lender’s Prepayment Option Notice as being applicable to such Term Lender’s Loans. If such Term Lender would like to reject all or a portion of such prepayment offer, such Term Lender shall execute and return such Prepayment Option Notice to the Administrative Agent within 5 Business Days after the date of the Prepayment Option Notice indicating its election to so reject such prepayment offer (and any other mandatory repayments Term Lender which does not execute and return such Prepayment Option Notice to the Administrative Agent within such 5 Business Days shall be deemed to have accepted such prepayment offer). On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Term Lenders have accepted such prepayment offer as described above, and (ii) the Borrower shall be entitled to retain and apply the remaining portion of the Prepayment Amount not accepted by the relevant Term Lenders (the “Unutilized Excess Proceeds”) for general corporate purposes, including the repayment of Indebtedness, or as otherwise required or permitted pursuant to its other contractual requirements, subject to the other covenants contained in this Section 5.02Agreement. After giving effect to such offer and prepayment, within 10 days following the amount of Excess Proceeds shall be reset at zero.
(f) On each date on or Excess Cash Flow Payment Date after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans))Effective Date, an amount equal to 100% of the Net Debt Proceeds therefrom Excess Cash Flow Repayment Amount shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(dg) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an I) Each amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder pursuant to reinvest in the purchase of assets useful in the business of Borrower Sections 5.02(d) and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months5.02(e) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02repay outstanding Term Loans, on each Excess Cash Flow Payment Date, an amount (such amount a pro rata basis among the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereofLenders.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
Appears in 1 contract
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021the last Business Day of the first full fiscal quarter commencing after the Closing Date, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 1.25% of the aggregate principal amount of all Initial Term Loans outstanding on the Closing Date and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which Borrower the Parent or any of its Restricted Subsidiaries Subsidiary receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which Borrower Parent or any of its Restricted Subsidiaries Subsidiary receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower Parent or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower Parent and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower Parent or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days six months following such 12-month period during which Borrower Parent so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower Parent or such Restricted Subsidiary of such Net Sale Proceeds, Borrower Parent or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount equal to the remainder of (i) the Applicable Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all (x) voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement), in each case under this clause (ii), which prepayments are made at any time prior to the Excess Cash Flow Payment Date and not previously applied to reduce an Excess Cash Flow payment shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Parent or any Restricted Subsidiary receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to 100% of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h). Notwithstanding the foregoing, Parent or such Restricted Subsidiary may apply such Net Insurance Proceeds to reinvest in the purchase of assets useful in the business of Parent and its Restricted Subsidiaries within 12 months following the date of receipt of such proceeds (or, if within such 12-month period, Parent or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Sale Proceeds, within 18 months following the date of receipt of such proceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Parent or any of its Restricted Subsidiaries of such Net Insurance Proceeds, Parent or any of its Restricted Subsidiaries have not so used all or a portion of such Net Insurance Proceeds otherwise required to be applied as a mandatory repayment pursuant to this sentence, an amount equal to the remaining portion of such Net Insurance Proceeds shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Parent. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Parent may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made; provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by Parent as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, or if the repatriation of any such amount would result in any adverse tax consequence to any Foreign Subsidiary of Parent or its Restricted Subsidiaries as reasonably determined by the Borrowers in good faith, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States or until a change in the tax treatment would allow such repatriation without any adverse tax consequences as reasonably determined by the Borrowers in good faith (the Borrowers hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, or a change in the tax treatment would allow such repatriation without any adverse tax consequences as reasonably determined by the Borrowers in good faith, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02.
(k) The Parent shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of Parent’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Parent no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. The Administrative Agent shall notify Parent of any rejection by any Lender of any mandatory prepayment of Term Loans on the Business Day before such payment would otherwise be due hereunder. Any Declined Proceeds may be retained by the Borrowers in accordance with this Agreement.
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Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) with respect to the Initial Term Loans (other than 2021 Incremental Term Loans), on the last Business Day of each March, June, September and December, (a) commencing with December 31June 30, 20212021 and ending on the 2021 Incremental Term Loans Conversion Date, an aggregate principal amount of equal to $1,625,000 and (ii) with respect to the Initial Term Loans (including, for the avoidance of doubt, 2021 Incremental Term Loans), on the last Business Day of each March, June, September and December, commencing after the 2021 Incremental Term Loans Conversion Date, an aggregate principal amount equal to $5,312,5002,254,722.93, and (iiiii) on the Initial Maturity Date for Initial Term Loans (including, for the avoidance of doubt, 2021 Incremental Term Loans), the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and through (iiiii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”). 2021 Incremental Term Loans shall not be subject to mandatory repayments pursuant to this Section 5.02 prior to the 2021 Incremental Term Loans Conversion Date.
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofLoans. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Lead Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments(x) voluntary prepayments of Term Loans, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower Refinancing Notes and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following Indebtedness under the making of such Investment, was and remains a Restricted SubsidiaryABL Credit Agreement), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Insurance Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereofrepayment. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Sale Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, Lead Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Term Loans were made; provided that: (i) repayments of Term SOFR Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrowers hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Lead Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that Lead Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost Exhibit A-71 consequences, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrowers shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of Lead Borrower’s repayment notice and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled.
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Sources: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), the Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December June 28December 31, 20212024 (a “Scheduled Repayment Date”), an aggregate principal amount of Initial Term B-23 Loans equal to $5,312,500, 0.25% of the aggregate principal amount of all Term B-23 Loans outstanding on the Amendment No. 45 Effective Date and (ii) on the Initial Term B-23 Maturity Date for Initial Term LoansDate, the aggregate principal amount of all Initial Term B-23 Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.202.19, 2.21, Section 2.20 or in connection with voluntary prepayments as provided in Section 5.01 or mandatory prepayments as provided in Section 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term B-23 Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than 10.04, Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Sale Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder pursuant to this sentence shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iiix) the aggregate amount of all Capital Expenditures made or accrued by Borrower voluntary prepayments (including buybacks and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(iiprepayments in connection with Section 5.01(b)) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions Term Loans, Refinancing Notes and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other than Investments Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in Cash Equivalents or in Borrower or a Person thateach case, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted accompanied by Sections 10.03(iii)a permanent reduction in commitments therefor, (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of (x) $27,500,000 50,000,000 and 5.0(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 ten (10) days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event with (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Insurance Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, the Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes or Permitted Pari Passu Loans (or, in either case, any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Term Loans were made; provided that: (i) repayments of Term SOFR Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of the Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation other than any such taxes already taken into account by the definition of “Net Sale Proceeds”, “Net Insurance Proceeds” or “Excess Cash Flow”, as applicable) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax cost consequences with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three (3) Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of the Borrower’s repayment notice and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds may be retained by the Borrowe
Appears in 1 contract
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, [reserved] and (ii) on the Initial Maturity Date for Initial Term B-2 Loans, the aggregate principal amount of all Initial Term B-2 Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term B-2 Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofLoans. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Lead Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments(x) voluntary prepayments of Term Loans, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower Refinancing Notes and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following Indebtedness under the making of such Investment, was and remains a Restricted SubsidiaryABL Credit Agreement), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Insurance Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereofrepayment. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Sale Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, Lead Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Term Loans were made; provided that: (i) repayments of Term SOFR Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrowers hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Lead Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that Lead Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrowers shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of Lead Borrower’s repayment notice and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled.
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Sources: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), the Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December June 30, 2020March 31, 20212021 (a “Scheduled Repayment Date”), an aggregate principal amount of Initial Term B Loans equal to $5,312,500, 0.25% of the aggregate principal amount of all Initial Term B Loans outstanding on the ClosingAmendment No. 1 Effective Date and (ii) on the Initial InitialTerm B Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term B Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.202.19, 2.21, Section 2.20 or in connection with voluntary prepayments as provided in Section 5.01 or mandatory prepayments as provided in Section 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term B Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than 10.04, Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Sale Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder pursuant to this sentence shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iiix) the aggregate amount of all Capital Expenditures made or accrued by Borrower voluntary prepayments (including buybacks and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(iiprepayments in connection with Section 5.01(b)) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions Term Loans, Refinancing Notes and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other than Investments Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in Cash Equivalents or in Borrower or a Person thateach case, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted accompanied by Sections 10.03(iii)a permanent reduction in commitments therefor, (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of (x) $27,500,000 50,000,000 and 5.0(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 ten (10) days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event with (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Insurance Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, the Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes or Permitted Pari Passu Loans (or, in either case, any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made; provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of the Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation other than any such taxes already taken into account by the definition of “Net Sale Proceeds”, “Net Insurance Proceeds” or “Excess Cash Flow”, as applicable) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax cost consequences with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three (3) Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of the Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitl
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Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31June 30, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 1,625,000 and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and through (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofLoans. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Lead Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments(x) voluntary prepayments of Term Loans, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower Refinancing Notes and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following Indebtedness under the making of such Investment, was and remains a Restricted SubsidiaryABL Credit Agreement), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Insurance Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereofrepayment. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Sale Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, Lead Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month 12month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made; provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrowers hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Lead Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that Lead Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrowers shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of Lead Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled.
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Sources: Amendment and Restatement Agreement (VERRA MOBILITY Corp)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (eachthe Borrowers, a “Scheduled Repayment Date”)jointly and severally, Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December March 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,5000.25% of the aggregate principal amount of Initial Term Loans outstanding on the Closing Date, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”, and the date of each such Scheduled Repayment, a “Scheduled Repayment Date”).
(b) (I) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
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Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.023.02, on within one Business Day after each date set forth below on or after the Closing Date upon which the Borrower or any of its Subsidiaries receives any cash proceeds from any capital contribution or any sale or issuance of its equity or securities convertible into its equity (eachincluding, a “Scheduled Repayment Date”)without limitation, convertible debt) (other than cash proceeds received from equity contributions to any Guarantor Subsidiary of the Borrower to the extent made by the Borrower or another Guarantor Subsidiary of the Borrower) an amount equal to 100% of the Net Equity Proceeds of such capital contribution or sale or issuance of equity shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding applied on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result mandatory repayment of principal of the application of prepayments or otherwise outstanding Loan until paid in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”)full.
(b) In addition to any other mandatory repayments pursuant to this Section 5.023.02, on each date on or after the Closing Date upon which the Borrower or any of its Subsidiaries receives any cash proceeds from any incurrence by the Borrower or any of its Subsidiaries of Indebtedness for borrowed money (other than Indebtedness for borrowed money permitted to be incurred pursuant to Section 7.04 as such Section is in effect on the Closing Date), an amount equal to 100% of the Net Debt Proceeds of the respective incurrence of Indebtedness shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed applied on such date as a mandatory repayment of principal of the outstanding Loan until paid in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable theretofull.
(c) In addition to any other mandatory repayments pursuant to this Section 5.023.02, within 10 days following one Business Day after each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans))Asset Sale, an amount equal to 100% of the Net Debt Sale Proceeds therefrom shall be applied on such date as a mandatory repayment until the Obligations are paid in accordance with the requirements of Sections 5.02(g) and (h)full.
(d) In addition to any other mandatory repayments pursuant to this Section 5.023.02, within 10 days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds cash proceeds from any Asset Sale Recovery Event (other than Recovery Events in respect of ABL Collateralwhich the Net Insurance Proceeds therefrom do not exceed $1,000,000), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Insurance Proceeds therefrom from such Recovery Event shall be applied as a mandatory repayment of principal of the outstanding Loan until paid in accordance with the requirements of Sections 5.02(g) full; provided that so long as no Specified Default then exists and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrowerdo not exceed $5,000,000, such Net Sale Insurance Proceeds shall not be required to be so applied on such date to the extent that the Borrower has delivered a certificate to the Lender on or prior to such date stating that such Net Insurance Proceeds shall be used to make mandatory repayments replace or restore any properties or assets in respect of Term Loans which such Net Insurance Proceeds were paid within 270 days following the date of the receipt of such Net Insurance Proceeds (which certificate shall set forth the estimates of the Net Insurance Proceeds to be so expended), and any required prepayment shall be only provided further, that (i) if the amount in excess thereof. Notwithstanding of such Net Insurance Proceeds exceeds $5,000,000, then the foregoing, Borrower or entire amount of such Restricted Subsidiary may apply all or a Net Insurance Proceeds (and not just the portion of such Net Sale Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase excess of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months$5,000,000) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment of the Loan as provided above in accordance with this Section 3.02(d), (ii) if all or any portion of such Net Insurance Proceeds not required to be applied to the requirements repayment of Sections 5.02(g) and the outstanding Loan pursuant to the preceding proviso are not so used within 90 days after the date of the receipt of such Net Insurance Proceeds (h) or such earlier date, if any, as the Borrower determines not to reinvest the Net Insurance Proceeds relating to such Recovery Event as set forth above), such remaining portion shall be applied on the last day of such 12-month period (oror such earlier date, to as the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(dcase may be) as a result mandatory repayment of principal of the application of outstanding Loan as provided above in this Section 3.02(d) without regard to the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”preceding proviso.
(e) In addition to any other mandatory repayments pursuant to this Section 5.023.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of outstanding Loan shall be repaid in full on the Excess Cash Flow for the related Excess Cash Flow Payment Period less Final Maturity Date and (ii) unless the aggregate amount Lender otherwise agrees, the outstanding Loan shall be repaid in full on the earlier of all Voluntary Pari Passu Debt Prepayments, less the date on which (iiiA) a Change of Control occurs or (B) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereofDisposition occurs.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
Appears in 1 contract
Sources: Credit Agreement (Emcore Corp)
Mandatory Repayments. (a) In addition If on any date (including the Early Termination Date) the sum of (x) the aggregate outstanding principal amount of Revolving Loans and Swingline Loans (after giving effect to any all other mandatory repayments pursuant to this Section 5.02thereof on such date) and (y) the Letter of Credit Outstandings on such date, on each date set forth below (eachexceeds the Total Revolving Loan Commitment as then in effect, a “Scheduled Repayment Date”), the Borrower shall be required repay on such date, the principal of Swingline Loans, and if no Swingline Loans are or remain outstanding, the principal of Revolving Loans in an aggregate amount equal to repay such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and all outstanding Revolving Loans, the aggregate amount of Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as then in effect, the Borrower shall pay to the Administrative Agent for at the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding Payment Office on such date an amount (each in U.S. Dollars) in cash and/or Cash Equivalents equal to such repayment described in clauses excess (iup to the aggregate amount of Letter of Credit Outstandings at such time) and (ii), the Administrative Agent shall hold such payment as security for the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result obligations of the application Borrower to the Lenders hereunder pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent; provided that upon the occurrence of prepayments or otherwise in connection with any Extension as provided in Section 2.14the Early Termination Date, a “Scheduled Repayment”)the Borrower shall Cash Collateralize all Letter of Credit Outstandings.
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial of Incremental Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Incremental Term Loans to the extent, and on the dates and in the principal amounts, amounts set forth in the respective Incremental Term Loan AmendmentCommitment Agreement (each such date, Refinancing a “Scheduled Incremental Term Loan Amendment Repayment Date”, and each such repayment, as the same may be (x) reduced as provided in Section 5.01 or Extension Amendment applicable thereto5.02(h) or (y) increased as provided in Section 2.15(c), a “Scheduled Incremental Term Loan Repayment”).
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following five Business Days after each date on or after the Closing Effective Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds Net Sale Proceeds from any issuance or incurrence of Indebtedness Asset Sale (other than Indebtedness permitted receivables (and related assets) subject to be incurred the Chinese Factoring Program sold pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans10.02(xiv) and/or a Foreign Receivables Facility sold pursuant to Section 10.02(xiii)), an NEWYORK 9228865 (2K) -75- amount equal to 100% of the Net Debt Sale Proceeds therefrom from such Asset Sale shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided that (i) such Net Sale Proceeds may be retained by the Borrower and its Subsidiaries without giving rise to a mandatory repayment as otherwise required above, so long as no Default or Event of Default exists at the time such Net Sale Proceeds are received and an Authorized Officer of the Borrower has delivered a certificate to the Administrative Agent on or prior to such date stating that such Net Sale Proceeds shall beare used to purchase capital assets used or to be used in the businesses permitted pursuant to Section 10.01 (including, without limitation (but only to the extent permitted by Section 10.05), the purchase of the capital stock of a Person engaged in such businesses) or, in the case of Net Sale Proceeds received in connection with an IRB Sale-Leaseback Transaction, to make an Investment of the type described in Section 10.05(xxii) within one year following the date of receipt of such Net Sale Proceeds from such Asset Sale (which certificate shall set forth the estimates of the proceeds to be so expended) and,; provided further, that if all or any portion of such proceeds not required to be applied as a mandatory repayment pursuant to the preceding proviso are either (A) not so used or committed to be so used within one year after the date of the receipt of such proceeds or (B) if committed to be used within one year after the date of receipt of such proceeds and not so used within 18 months after the date of the receipt of such proceeds then, in either such case, such remaining portion not used or committed to be used in the case of preceding clause (A), and not used in the case of preceding clause (B), shall be applied within 10 days after the date occurring one year after the date of the receipt of proceeds from such Asset Sale in the case of clause (A) above, or the date occurring 18 months after the date of the receipt of proceeds from the respective Asset Sale in the case of clause (B) above, as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following one Business Day after each date on or after the Closing Effective Date upon on which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds cash proceeds from any Asset Sale incurrence of Indebtedness by the Borrower or any of its Subsidiaries (other than Indebtedness permitted to be incurred pursuant to Section 10.04 as in respect of ABL Collateraleffect on the Effective Date), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Cash Proceeds therefrom of the respective incurrence of Indebtedness shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect .
(e) In addition to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make other mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required pursuant to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (orthis Section 5.02, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderany Incremental Term Loans are then outstanding, an amount equal to the remaining portion Applicable Excess Cash Flow Percentage of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder the Excess Cash Flow for the related Excess Cash Flow Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, solely to the extent applicablerequired by, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such caseterms of, the required prepayment shall be only the amount in excess thereofapplicable Incremental Term Loan Commitment Agreement governing such Incremental Term Loans.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Effective Date upon on which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds proceeds from any Recovery Event (other than proceeds from Recovery Events in respect of ABL Collateralan amount less than $5,000,000 per Recovery Event), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Insurance Proceeds from proceeds of such Recovery Event (net of reasonable costs (including, without limitation, legal costs and expenses) and taxes incurred in connection with such Recovery Event NEWYORK 9228865 (2K) -76- and the amount of such proceeds required to be used to repay any Indebtedness (other than Indebtedness of the Lenders pursuant to this Agreement) which is secured by the respective assets subject to such Recovery Event) shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); providedprovided that so long as no Default or Event of Default then exists, however, with such proceeds shall not be required to be so applied to the extent that an Authorized Officer of the Borrower has delivered a certificate to the Administrative Agent stating that such proceeds shall be used or shall be committed to be used to replace or restore any properties or assets in respect to an aggregate amount of no more than which such proceeds were paid within one year following the greater date of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, receipt of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year proceeds from such Recovery Event (which certificate shall set forth the estimates of Borrowerthe proceeds to be so expended); provided further, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply that if all or a any portion of such Net Insurance Proceeds that would otherwise be proceeds not required to be applied as a mandatory repayment hereunder pursuant to reinvest in the purchase preceding proviso are either (A) not so used or committed to be so used within one year after the date of assets useful in the business receipt of Borrower and its Restricted Subsidiaries such proceeds or (B) if committed to be used within 12 months following one year after the date of receipt of such Net Insurance Proceeds (or, if proceeds and not so used within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 18 months (or, to the extent applicable, 18 months) after the date of the receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceedsproceeds then, Borrower in either such case, such remaining portion not used or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required committed to be applied as a mandatory repayment hereunderused in the case of preceding clause (A), an amount equal to and not used in the remaining portion case of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder preceding clause (B), shall be applied within 10 days after the date occurring one year after the date of the receipt of proceeds from such Recovery Event in the case of clause (A) above, or the date occurring 18 months after the date of the receipt of proceeds from the respective Recovery Event in the case of clause (B) above, as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(g) Each amount required to be applied pursuant to Sections 5.02(c), (d), (e) and (f) in accordance with this Section 5.02(g) shall be applied on and after the Effective Date to repay the outstanding principal amount of Swingline Loans and Revolving Loans (but without any corresponding reduction in the Revolving Loan Commitments); provided, however, that if any Incremental Term Loans are then outstanding, each such amount shall be applied (i) first, to repay the outstanding principal amount of Incremental Term Loans, with such amount to be allocated among each Tranche of outstanding Incremental Term Loans on a pro rata basis (based upon the Incremental Term Loan Percentages of the various Tranches of Incremental Term Loans and the then outstanding principal amounts of the respective Tranches of Incremental Term Loans) and (ii) second, to the extent in excess of the amounts required to be applied pursuant to preceding clause (i), to repay the outstanding principal amount of Swingline Loans and Revolving Loans (but without any corresponding reduction in the Revolving Loan Commitments). All repayments of outstanding Incremental Term Loans pursuant to Sections 5.02(c), (d), (e) and (f) shall be applied to reduce the then remaining Scheduled Incremental Term Loan Repayments of such Tranche of Incremental Term Loans in the manner set forth in the applicable Incremental Term Loan Commitment Agreement for such Tranche of Incremental Term Loans.
(h) With respect to each repayment of Loans required by this Section 5.02, the Borrower may designate the Types of Loans of the respective Tranche which are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings of the respective Tranche pursuant to which made; provided that: (i) repayments of Eurodollar Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all Eurodollar Loans of the respective Tranche with Interest Periods ending on such 12-month date of required repayment and all Base Rate Loans of the respective Tranche have first been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce NEWYORK 9228865 (2K) -77- the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, such Borrowing shall be converted at the end of the then current Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of any Tranche of Loans made pursuant to a Borrowing shall be applied pro rata among the Loans comprising such Borrowing. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.11. Notwithstanding the foregoing provisions of this Section 5.02, if at any time the mandatory repayment of Loans pursuant to Section 5.02(c), (d), (e) or (f) would result, after giving effect to the procedures set forth in this clause (i) above, in the Borrower incurring breakage costs under Section 2.11 as a result of Eurodollar Loans being repaid other than on the last day of an Interest Period applicable thereto (any such Eurodollar Loans, “Affected Loans”), the Borrower may elect, by written notice to the Administrative Agent, to have the provisions of the following sentence be applicable so long as no Default or Event of Default is then in existence. At the time any Affected Loans are otherwise required to be prepaid the Borrower may elect, so long as no Default or Event of Default is then in existence, to deposit 100% (or such lesser percentage elected by the Borrower as not being repaid) of the principal amounts that otherwise would have been paid in respect of the Affected Loans with the Administrative Agent to be held as security for the obligations of the Borrower hereunder pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, with such cash collateral to be released from such cash collateral account (and applied to repay the principal amount of such Eurodollar Loans) upon each occurrence thereafter of the last day of an Interest Period applicable to Eurodollar Loans of the respective Tranche (or such earlier date or dates as shall be requested by the Borrower), with the amount to be so released and applied on the last day of each Interest Period to be the amount of such Eurodollar Loans to which such Interest Period applies (or, if less, the amount remaining in such cash collateral account).
(i) Notwithstanding anything to the extent applicablecontrary contained elsewhere in this Agreement, 18(i) all then outstanding Swingline Loans shall be repaid in full on the Swingline Expiry Date, (ii) all other then outstanding Loans shall be repaid in full on the respective Maturity Date for such Tranche of Loans and (iii) unless the Required Lenders shall otherwise agree in writing in their sole discretion, all outstanding Loans shall be repaid in full upon the occurrence of a Change of Control.
(j) If any RL Lender becomes a Defaulting Lender at any time that any Letter of Credit issued by any Letter of Credit Issuer is outstanding, the Borrower shall enter into the applicable Letter of Credit Back-monthStop Arrangements with such Issuing Lender no later than 15 Business Days (or such later date as may be agreed by the Letter of Credit Issuer in its sole discretion) periodafter the date such Lender becomes a Defaulting Lender.
Appears in 1 contract
Sources: Credit Agreement (EnerSys)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (eachthe Borrowers, a “Scheduled Repayment Date”)jointly and severally, Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31the last Business Day of the first full fiscal quarter after the Closing Date,June 30, 20212017, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 1.25% of the aggregate principal amount of all Initial Term Loans outstanding on the Closing Date$7,452,532.00 and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
Appears in 1 contract
Mandatory Repayments. (a) In addition If on any date (including the Early Termination Date) the sum of (x) the aggregate outstanding principal amount of Revolving Loans and Swingline Loans (after giving effect to any all other mandatory repayments pursuant to this Section 5.02thereof on such date) and (y) the Letter of Credit Outstandings on such date, on each date set forth below (eachexceeds the Total Revolving Loan Commitment as then in effect, a “Scheduled Repayment Date”), the Borrower shall be required repay on such date, the principal of Swingline Loans, and if no Swingline Loans are or remain outstanding, the principal of Revolving Loans in an aggregate amount equal to repay such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and all outstanding Revolving Loans, the aggregate amount of Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as then in effect, the Borrower shall pay to the Administrative Agent for at the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding Payment Office on such date an amount (each in U.S. Dollars) in cash and/or Cash Equivalents equal to such repayment described in clauses excess (iup to the aggregate amount of Letter of Credit Outstandings at such time) and (ii), the Administrative Agent shall hold such payment as security for the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result obligations of the application Borrower to the Lenders hereunder pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent; provided that upon the occurrence of prepayments or otherwise in connection with any Extension as provided in Section 2.14the Early Termination Date, a “Scheduled Repayment”)the Borrower shall Cash Collateralize all Letter of Credit Outstandings.
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial of Incremental Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Incremental Term Loans to the extent, and on the dates and in the principal amounts, amounts set forth in the respective Incremental Term Loan AmendmentCommitment Agreement (each such date, Refinancing a “Scheduled Incremental Term Loan Amendment Repayment Date”, and each such repayment, as the same may be (x) reduced as provided in Section 5.01 or Extension Amendment applicable thereto5.02(h) or (y) increased as provided in Section 2.15(c), a “Scheduled Incremental Term Loan Repayment”).
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following five Business Days after each date on or after the Closing Effective Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds Net Sale Proceeds from any issuance or incurrence of Indebtedness Asset Sale (other than Indebtedness permitted receivables (and related assets) subject to be incurred the Chinese Factoring Program sold pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans10.02(xiv) and/or a Foreign Receivables Facility sold pursuant to Section 10.02(xiii)), an amount equal to 100% of the Net Debt Sale Proceeds therefrom from such Asset Sale shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided that (i) such Net Sale Proceeds may be retained by the Borrower and its Subsidiaries without giving rise to a mandatory repayment as otherwise required above, so long as no Default or Event of Default exists at the time such Net Sale Proceeds are received and an Authorized Officer of the Borrower has delivered a certificate to the Administrative Agent on or prior to such date stating that such Net Sale Proceeds shall be used to purchase capital assets used or to be used in the businesses permitted pursuant to Section 10.01 (including, without limitation (but only to the extent permitted by Section 10.05), the purchase of the capital stock of a Person engaged in such businesses) or, in the case of Net Sale Proceeds received in connection with an IRB Sale-Leaseback Transaction, to make an Investment of the type described in Section 10.05(xxii) within one year following the date of receipt of such Net Sale Proceeds from such Asset Sale (which certificate shall set forth the estimates of the proceeds to be so expended) and, provided further, that if all or any portion of such proceeds not required to be applied as a mandatory repayment pursuant to the preceding proviso are either (A) not so used or committed to be so used within one year after the date of the receipt of such proceeds or (B) if committed to be used within one year after the date of receipt of such proceeds and not so used within 18 months after the date of the receipt of such proceeds then, in either such case, such remaining portion not used or committed to be used in the case of preceding clause (A), and not used in the case of preceding clause (B), shall be applied within 10 days after the date occurring one year after the date of the receipt of proceeds from such Asset Sale in the case of clause (A) above, or the date occurring 18 months after the date of the receipt of proceeds from the respective Asset Sale in the case of clause (B) above, as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following one Business Day after each date on or after the Closing Effective Date upon on which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds cash proceeds from any Asset Sale incurrence of Indebtedness by the Borrower or any of its Subsidiaries (other than Indebtedness permitted to be incurred pursuant to Section 10.04 as in respect of ABL Collateraleffect on the Effective Date), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Cash Proceeds therefrom of the respective incurrence of Indebtedness shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect .
(e) In addition to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make other mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required pursuant to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (orthis Section 5.02, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderany Incremental Term Loans are then outstanding, an amount equal to the remaining portion Applicable Excess Cash Flow Percentage of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder the Excess Cash Flow for the related Excess Cash Flow Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, solely to the extent applicablerequired by, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such caseterms of, the required prepayment shall be only the amount in excess thereofapplicable Incremental Term Loan Commitment Agreement governing such Incremental Term Loans.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Effective Date upon on which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds proceeds from any Recovery Event (other than proceeds from Recovery Events in respect of ABL Collateralan amount less than $5,000,000 per Recovery Event), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Insurance Proceeds from proceeds of such Recovery Event (net of reasonable costs (including, without limitation, legal costs and expenses) and taxes incurred in connection with such Recovery Event and the amount of such proceeds required to be used to repay any Indebtedness (other than Indebtedness of the Lenders pursuant to this Agreement) which is secured by the respective assets subject to such Recovery Event) shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); providedprovided that so long as no Default or Event of Default then exists, however, with such proceeds shall not be required to be so applied to the extent that an Authorized Officer of the Borrower has delivered a certificate to the Administrative Agent stating that such proceeds shall be used or shall be committed to be used to replace or restore any properties or assets in respect to an aggregate amount of no more than which such proceeds were paid within one year following the greater date of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, receipt of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year proceeds from such Recovery Event (which certificate shall set forth the estimates of Borrowerthe proceeds to be so expended); provided further, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply that if all or a any portion of such Net Insurance Proceeds that would otherwise be proceeds not required to be applied as a mandatory repayment hereunder pursuant to reinvest in the purchase preceding proviso are either (A) not so used or committed to be so used within one year after the date of assets useful in the business receipt of Borrower and its Restricted Subsidiaries such proceeds or (B) if committed to be used within 12 months following one year after the date of receipt of such Net Insurance Proceeds (or, if proceeds and not so used within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 18 months (or, to the extent applicable, 18 months) after the date of the receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceedsproceeds then, Borrower in either such case, such remaining portion not used or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required committed to be applied as a mandatory repayment hereunderused in the case of preceding clause (A), an amount equal to and not used in the remaining portion case of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder preceding clause (B), shall be applied within 10 days after the date occurring one year after the date of the receipt of proceeds from such Recovery Event in the case of clause (A) above, or the date occurring 18 months after the date of the receipt of proceeds from the respective Recovery Event in the case of clause (B) above, as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(g) Each amount required to be applied pursuant to Sections 5.02(c), (d), (e) and (f) in accordance with this Section 5.02(g) shall be applied on and after the Effective Date to repay the outstanding principal amount of Swingline Loans and Revolving Loans (but without any corresponding reduction in the Revolving Loan Commitments); provided, however, that if any Incremental Term Loans are then outstanding, each such amount shall be applied (i) first, to repay the outstanding principal amount of Incremental Term Loans, with such amount to be allocated among each Tranche of outstanding Incremental Term Loans on a pro rata basis (based upon the Incremental Term Loan Percentages of the various Tranches of Incremental Term Loans and the then outstanding principal amounts of the respective Tranches of Incremental Term Loans) and (ii) second, to the extent in excess of the amounts required to be applied pursuant to preceding clause (i), to repay the outstanding principal amount of Swingline Loans and Revolving Loans (but without any corresponding reduction in the Revolving Loan Commitments). All repayments of outstanding Incremental Term Loans pursuant to Sections 5.02(c), (d), (e) and (f) shall be applied to reduce the then remaining Scheduled Incremental Term Loan Repayments of such Tranche of Incremental Term Loans in the manner set forth in the applicable Incremental Term Loan Commitment Agreement for such Tranche of Incremental Term Loans.
(h) With respect to each repayment of Loans required by this Section 5.02, the Borrower may designate the Types of Loans of the respective Tranche which are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings of the respective Tranche pursuant to which made; provided that: (i) repayments of Eurodollar Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all Eurodollar Loans of the respective Tranche with Interest Periods ending on such 12-month date of required repayment and all Base Rate Loans of the respective Tranche have first been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, such Borrowing shall be converted at the end of the then current Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of any Tranche of Loans made pursuant to a Borrowing shall be applied pro rata among the Loans comprising such Borrowing. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.11. Notwithstanding the foregoing provisions of this Section 5.02, if at any time the mandatory repayment of Loans pursuant to Section 5.02(c), (d), (e) or (f) would result, after giving effect to the procedures set forth in this clause (i) above, in the Borrower incurring breakage costs under Section 2.11 as a result of Eurodollar Loans being repaid other than on the last day of an Interest Period applicable thereto (any such Eurodollar Loans, “Affected Loans”), the Borrower may elect, by written notice to the Administrative Agent, to have the provisions of the following sentence be applicable so long as no Default or Event of Default is then in existence. At the time any Affected Loans are otherwise required to be prepaid the Borrower may elect, so long as no Default or Event of Default is then in existence, to deposit 100% (or such lesser percentage elected by the Borrower as not being repaid) of the principal amounts that otherwise would have been paid in respect of the Affected Loans with the Administrative Agent to be held as security for the obligations of the Borrower hereunder pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, with such cash collateral to be released from such cash collateral account (and applied to repay the principal amount of such Eurodollar Loans) upon each occurrence thereafter of the last day of an Interest Period applicable to Eurodollar Loans of the respective Tranche (or such earlier date or dates as shall be requested by the Borrower), with the amount to be so released and applied on the last day of each Interest Period to be the amount of such Eurodollar Loans to which such Interest Period applies (or, if less, the amount remaining in such cash collateral account).
(i) Notwithstanding anything to the extent applicablecontrary contained elsewhere in this Agreement, 18(i) all then outstanding Swingline Loans shall be repaid in full on the Swingline Expiry Date, (ii) all other then outstanding Loans shall be repaid in full on the respective Maturity Date for such Tranche of Loans and (iii) unless the Required Lenders shall otherwise agree in writing in their sole discretion, all outstanding Loans shall be repaid in full upon the occurrence of a Change of Control.
(j) If any RL Lender becomes a Defaulting Lender at any time that any Letter of Credit issued by any Letter of Credit Issuer is outstanding, the Borrower shall enter into the applicable Letter of Credit Back-monthStop Arrangements with such Issuing Lender no later than 15 Business Days (or such later date as may be agreed by the Letter of Credit Issuer in its sole discretion) periodafter the date such Lender becomes a Defaulting Lender.
Appears in 1 contract
Sources: Credit Agreement (EnerSys)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), the Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 20212024September 30, 2025 (a “Scheduled Repayment Date”), an aggregate principal amount of Initial Term B-34 Loans equal to $5,312,500, 0.25% of the aggregate principal amount of all Term B-34 Loans outstanding on the Amendment No. 56 Effective Date and (ii) on the Initial Term B-34 Maturity Date for Initial Term LoansDate, the aggregate principal amount of all Initial Term B-34 Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.202.19, 2.21, Section 2.20 or in connection with voluntary prepayments as provided in Section 5.01 or mandatory prepayments as provided in Section 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term B-34 Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than 10.04, Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Sale Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder pursuant to this sentence shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iiix) the aggregate amount of all Capital Expenditures made or accrued by Borrower voluntary prepayments (including buybacks and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(iiprepayments in connection with Section 5.01(b)) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions Term Loans, Refinancing Notes and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other than Investments Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in Cash Equivalents or in Borrower or a Person thateach case, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted accompanied by Sections 10.03(iii)a permanent reduction in commitments therefor, (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of (x) $27,500,000 50,000,000 and 5.0(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 ten (10) days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event with (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Insurance Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, the Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes or Permitted Pari Passu Loans (or, in either case, any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Term Loans were made; provided that: (i) repayments of Term SOFR Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of the Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation other than any such taxes already taken into account by the definition of “Net Sale Proceeds”, “Net Insurance Proceeds” or “Excess Cash Flow”, as applicable) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax cost consequences with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three (3) Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of the Borrower’s repayment notice and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds may be retained by
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Mandatory Repayments. (a) In addition to If any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower Indebtedness shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower incurred by Holdings or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than any Indebtedness permitted to be incurred pursuant in accordance with Section 9.2), concurrently with, and as a condition to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans))closing of such transaction, an amount equal to 100% of the Net Debt Cash Proceeds therefrom thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as a mandatory repayment set forth in accordance with the requirements of Sections 5.02(g) and (h)this Section 5.2.
(db) In addition If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (I) the excess of (i) the applicable ECF Percentage of such Excess Cash Flow over (ii) to the extent not funded with the proceeds of long-term Indebtedness, the aggregate amount of all optional prepayments of Term Loans or Revolving Loans (other than in respect of any other mandatory repayments Revolving Loans to the extent there is not an equivalent permanent reduction in commitments thereunder) made during the Specified Period for such Excess Cash Flow Period minus (II) $1,000,000, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in this Section 5.2; provided that the amount pursuant to this Section 5.02, within 10 days following each 5.2(b) shall be no less than $0. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten Business Days after the earlier of (i) the date on or after which the Closing Date upon financial statements of the U.S. Borrower referred to in Section 8.1(a), for the fiscal year with respect to which Borrower such prepayment is made, are required to be delivered and (ii) the date such financial statements are actually delivered.
(c) If on any date Holdings or any of its Restricted Subsidiaries receives any shall receive Net Sale Cash Proceeds from any Asset Sale (other than in respect of ABL Collateral)or any Recovery Event, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the then such Net Sale Cash Proceeds therefrom shall be applied as a mandatory repayment within three Business Days of such date to prepay outstanding Term Loans in accordance with the requirements of Sections 5.02(g) and (h)this Section 5.2; provided, howeverthat the U.S. Borrower shall have the option, with respect to an aggregate amount directly or through one or more of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for Subsidiaries, to reinvest such Net Cash Proceeds within one year of receipt thereof (or, if later, 180 days after the most recently ended Test Period, date the U.S. Borrower or a Restricted Subsidiary thereof has entered into a binding commitment to reinvest the Net Cash Proceeds thereof prior to the expiration of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries one year period) in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the U.S. Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into in connection with a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment)Permitted Acquisition; provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of all such Net Sale Proceeds, Borrower or such Restricted Subsidiary has Cash Proceeds not so used all or a portion of reinvested within such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to period must be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”5.2.
(ed) In addition Amounts to any other mandatory repayments be applied in connection with prepayments made pursuant to this Section 5.025.2 shall be applied, on each Excess Cash Flow Payment Date, an amount first (such amount if elected by the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of U.S. Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with next four scheduled installments of principal of the proceeds of long-term Indebtedness (excluding ABL Revolving Term Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04)Incremental Term Loans on a pro rata basis, shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); providedsecond, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event remaining scheduled installments (other than in respect the final installment at maturity) of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage principal of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoingIncremental Term Loans on a pro rata basis, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (orthird, to the extent applicablefinal installment of principal of the Term Loans and any Incremental Term Loans at maturity, 18 months) fourth, at any time after the date of receipt by Borrower Term Loans and any Incremental Term Loans have been repaid or such Restricted Subsidiary of such Net Insurance Proceedsprepaid in full, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to prepay any outstanding Revolving Loans (without reducing the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(gRevolving Loan Commitments) and (h) on fifth, as otherwise directed by the last day of such 12-month (or, to the extent applicable, 18-month) periodU.S. Borrower.
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Mandatory Repayments. (a) In addition to If any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower Indebtedness shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower incurred by Holdings or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than any Indebtedness permitted to be incurred in accordance with Section 8.01 (excluding Section 8.01(d) any Indebtedness incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans2.17)), not later than two Business Days after the incurrence of such Indebtedness, an amount equal to 100% of the Net Debt Cash Proceeds therefrom thereof shall be applied toward the prepayment of the Term Loans as a mandatory repayment set forth in accordance with the requirements of Sections 5.02(g) and (h)this Section 4.02.
(db) In addition If, for any Excess Cash Flow Period, there shall be Excess Cash Flow for such Excess Cash Flow Period in excess of $2,500,000, an amount equal to the excess of (i) the applicable ECF Percentage of such Excess Cash Flow over the sum of (ii) to the extent financed with internally generated cash flows and without duplication of any deductions made in the calculation of Excess Cash Flow, the aggregate principal amount of all (x) optional prepayments of Term Loans (other mandatory repayments than Loans Cancelled pursuant to Section 12.04), Incremental Term Loans and Permitted Incremental Equivalent Debt made, (y) Loans acquired by a Permitted Auction Purchaser and which have been Cancelled and (z) optional prepayments of Revolving Loans, but only to the extent accompanied by a concurrent permanent reduction of the Revolving Commitments in a corresponding amount (other than Loans Cancelled pursuant to Section 12.04), in each case, during such Excess Cash Flow Period, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in this Section 4.02; provided that the amount pursuant to this Section 5.024.02(b) shall be no less than $0. Each such prepayment shall, within 10 days following each commencing with the Fiscal Year ending December 31, 2019, be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the earlier of (i) the date on or after which the Closing Date upon financial statements of Holdings referred to in Section 7.01(a), for the Fiscal Year with respect to which Borrower such prepayment is made, are required to be delivered and (ii) the date such financial statements are actually delivered.
(c) If on any date Holdings or any of its Restricted Subsidiaries receives any shall receive Net Sale Cash Proceeds from any Asset Sale (other than in respect or any Recovery Event, then 100% of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the such Net Sale Cash Proceeds therefrom shall be applied as a mandatory repayment within ten Business Days of such date to prepay outstanding Term Loans in accordance with the requirements of Sections 5.02(g) and (h)this Section 4.02; provided, howeverthat the Borrower shall have the option, with respect to an aggregate amount directly or through one or more of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for Subsidiaries, to reinvest such Net Cash Proceeds within one year of receipt thereof (or, if later, 180 days after the most recently ended Test Period, date the Borrower or a Restricted Subsidiary thereof has entered into a binding commitment to reinvest the Net Cash Proceeds thereof prior to the expiration of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries one year period) in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied assets used in or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment)Subsidiaries; provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of all such Net Sale Proceeds, Borrower or such Restricted Subsidiary has Cash Proceeds not so used all or a portion of reinvested within such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to period must be applied in accordance with this Section 5.02(d4.02(c) as a result without giving effect to the proviso herein.
(d) In the event of any partial reduction of the application Revolving Commitments, then (x) at or prior to the effective date of such reduction, the Revolving Agent shall notify the Borrower and the Revolving Lenders of the leverage-based step-down sum of the Revolving Exposures after giving effect thereto and (y) if the sum of the Revolving Exposures would exceed the aggregate amount of Revolving Commitments after giving effect to such reduction, then the Borrower shall, on the date of such reduction, first, repay or prepay Swing Line Loans, second, repay or prepay Revolving Borrowings and outstanding Reimbursement Obligations, and third, at the Borrower’s option, either cause one or more outstanding Letters of Credit to be cancelled at the written request of the beneficiary(ies) thereof or cash collateralized in accordance with the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”procedures set forth in Section 2.01(f)(ix), in an aggregate amount sufficient to eliminate such excess.
(e) In addition the event that the sum of all Lenders’ Revolving Exposures exceeds the Revolving Commitments then in effect, the Borrower shall, without notice or demand, immediately first, repay or prepay Swing Line Loans, second, repay or prepay Revolving Borrowings and outstanding Reimbursement Obligations, and third, at the Borrower’s option, either cause one or more outstanding Letters of Credit to be cancelled at the written request of the beneficiary(ies) thereof or cash collateralized in accordance with the procedures set forth in Section 2.01(f)(ix), in an aggregate amount sufficient to eliminate such excess.
(f) [Reserved].
(g) Amounts to be applied in connection with prepayments made pursuant to clauses (a) through (c) of this Section 4.02 shall be applied without premium or penalty to, first, each Tranche of Term Loans on a pro rata basis (or, in each case, if agreed to in writing by the Majority Lenders of a Tranche of Term Loans (other than the Initial Term Loans), in a manner that provides for more favorable prepayment treatment of other Tranches of Term Loans, so long as each other such Tranche receives its pro rata share of any amount to be applied more favorably, except to the extent otherwise agreed by the Majority Lenders of each Tranche receiving less than such pro rata share) (other than a prepayment of Term Loans with the proceeds of (x) Indebtedness Incurred pursuant to Section 2.17 or (y) Indebtedness Incurred under Section 8.01(d), which, in each case, shall be applied to the Tranche of Term Loans being Refinanced pursuant thereto). Second, after application of mandatory repayments prepayments to each Tranche of Term Loans described above in this Section 4.02(g) and to the extent there are mandatory prepayment amounts remaining after such application, such amounts shall be applied to ratably reduce the outstanding Revolving Loans in an aggregate amount equal to such excess (without a corresponding reduction of the Revolving Commitments). Third, after application of mandatory prepayments to the Revolving Loans described above in this Section 4.02(g) and to the extent there are mandatory prepayment amounts remaining after such application, such amounts shall be applied to Cash Collateralize any outstanding Letters of Credit (without a corresponding reduction of commitments thereunder). Amounts to be applied to a Tranche of Term Loans in connection with prepayments made pursuant to this Section 5.024.02 shall be applied to the remaining scheduled installments with respect to such Tranche of Term Loans as directed by the Borrower (or, if the Borrower has not made such designation, in direct order of maturity). Notwithstanding anything herein to the contrary, with respect to any prepayment under Section 4.02(c), the Borrower may use a portion of the Net Cash Proceeds to prepay or repurchase Permitted Incremental Equivalent Debt, Indebtedness incurred pursuant to Section 8.01(d) and any other senior Indebtedness in each case secured by the Collateral on each Excess Cash Flow Payment Date, an amount a pari passu basis with the Liens securing the Obligations (such amount the “Excess Cash Flow Payment AmountApplicable Other Indebtedness”) to the extent required or permitted pursuant to the terms of the documentation governing such Applicable Other Indebtedness, in which case, the amount of the prepayment required to be offered with respect to such Net Cash Proceeds pursuant to Section 4.02(c) shall be deemed to be the amount equal to the remainder 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 Term Loans required to be prepaid pursuant to Section 4.02(c) and the denominator of which is the sum of the outstanding principal amount of such Applicable Other Indebtedness and the outstanding principal amount of Term Loans required to be prepaid pursuant to Section 4.02(c).
(h) The Borrower shall deliver to the Administrative Agent (who will notify each Lender) notice of each prepayment required under clauses (a) through (c) of this Section 4.02 not less than three Business Days prior to the date such prepayment is required to be made (each such date, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Applicable ECF Mandatory Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less Date, (ii) the aggregate principal amount of all Voluntary Pari Passu Debt Prepayments, less each Term Loan (or portion thereof) to be prepaid and (iii) the aggregate amount Class and Type of all Capital Expenditures made or accrued by Borrower each Term Loan being prepaid. The Administrative Agent will promptly notify each Lender holding Term Loans of each Tranche being prepaid of the contents of the Borrower’s repayment notice and its Restricted Subsidiariesof such Lender’s pro rata share of the respective Tranche of Term Loans subject to such repayment. Subject to the Borrower’s consent, less (iv) without duplication each such Lender holding Term Loans under a Tranche may, except in the case of any amounts deducted pursuant to clause (b)(ii) repayment of the definition Term Loans with proceeds of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted Indebtedness Incurred pursuant to Section 10.05 (other than Investments in Cash Equivalents 8.01(d) or in Borrower Indebtedness Incurred pursuant to Section 2.17, reject all or a Person thatportion of its pro rata share of any mandatory repayment (such declined amounts, prior to and immediately following the making “Declined Proceeds”) of Term Loans of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are Tranche required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to this Section 4.02 by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment (“Initial Rejection Notice Deadline”). Each Rejection Notice from a given Lender holding Term Loans under a Tranche shall specify the principal amount of the mandatory repayment of Term Loans of such Tranche to be rejected by such Lender. If a Lender holding Term Loans under a Tranche fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans of such Tranche to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans of such Tranche to which such Lender is otherwise entitled. At the option of the Borrower, any Declined Proceeds with respect to a Tranche of Term Loans may be offered within 10 Business Days of the Initial Rejection Notice Deadline to the Lenders holding Term Loans of such Tranche not so declining such repayment on a pro rata basis in accordance with the principal amounts of the Term Loans under such Tranche of such Lenders (with such non‑declining Lenders having the right to decline any repayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such Lenders elect to decline their pro rata share of such Declined Proceeds following an offer from the Borrowers pursuant to the immediately preceding sentence any such Declined Proceeds remaining thereafter (the “Remaining Declined Proceeds”) shall increase the Available Amount. With respect to Revolving Loans, each reference to the Administrative Agent in this clause shall also be deemed to be a reference to the Revolving Agent.
(i) With respect to each repayment of Term Loans required by this Section 4.02, the Borrower may designate, within each respective Class to be repaid, the Types of Term Loans of the respective Tranche which are to be repaid and, in the case of LIBOR Loans, the specific Borrowing or Borrowings of the respective Tranche pursuant to which such LIBOR Loans were made, provided that: (i) unless the Borrower complies with the provisions of Section 2.12, repayments of LIBOR Loans pursuant to this Section 4.02 may only be made on the last day of an Interest Period applicable thereto unless all LIBOR Loans of the respective Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans of the respective Tranche have been paid in full; (ii) aboveif any repayment of LIBOR Loans made pursuant to a single Borrowing shall reduce the outstanding LIBOR Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, in such Borrowing shall be automatically converted into a Borrowing of Base Rate Loans; and (iii) each case repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. Notwithstanding the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (orforegoing, at the election of the Borrower, if committed to and after all Base Rate Loans and LIBOR Loans with Interest Periods ended on such date of the respective Class have been paid in full, the amount of any prepayment of Term Loans required under this Section 4.02 may be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior deposited in an escrow account on terms reasonably satisfactory to the time such Excess Cash Flow Payment Amount is due), Administrative Agent and applied to the extent not financed with prepayment of LIBOR Loans upon the proceeds expiration of long-term Indebtedness the applicable Interest Periods (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with direct order of maturity for the requirements of Sections 5.02(g) and (hrespective Class); provided, that no if an Event of Default has occurred and is continuing, the Administrative Agent may, and upon the written direction from the Required Lenders, shall, apply any or all of such amounts then on deposit in such escrow account to the payment of the respective Class of such Loans, together with any amounts owing to the Lenders in accordance with the provisions of Section 2.12. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(j) Notwithstanding any other provisions of this Section 4.02, (i) to the extent that any or all of the Net Cash Proceeds from a Disposition or Recovery Event by a Foreign Subsidiary giving rise to a prepayment shall be required with respect to requirement under Section 4.02(c) (a “Foreign Asset Sale”) or any amount included in Excess Cash Flow Payment Period and attributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) are (A) prohibited or delayed by applicable local law (including, without limitation, restrictions on financial assistance, corporate benefit, upstreaming of cash intra-group and the fiduciary and statutory duties of directors of the applicable Subsidiaries) from being repatriated to the extent United States or (B) not permitted by any applicable material restriction in any such Foreign Subsidiary’s Organizational Documents (including as a result of minority ownership) to be repatriated to the United States; (so long as such restrictions were not implemented solely for the purpose of avoiding such required prepayment), such portion of the Net Cash Proceeds or Foreign Subsidiary Excess Cash Flow for such period is equal so affected will not be required to or less than be applied to repay Loans at the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, times provided in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.024.02 but may be retained by the applicable Foreign Subsidiary so long, within 10 days following each date on but only so long, as the applicable local law or after provisions of the Closing Date upon which Borrower or applicable Organizational Document will not permit repatriation to the United States, and once such repatriation of any of its Restricted Subsidiaries receives any such affected Net Insurance Cash Proceeds from any Recovery Event (other than in respect of ABL Collateral)or Foreign Subsidiary Excess Cash Flow is permitted under the applicable local law or Organizational Document, such repatriation will be promptly effected and such repatriated Net Cash Proceeds and an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate full amount of no more than the greater of $55,000,000 such Foreign Subsidiary Excess Cash Flow that could be repatriated will be promptly (and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year event not later than two (2) Business Days after such repatriation is permitted) applied (net of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to additional taxes of the remaining portion Borrower, its Subsidiaries and the direct and indirect holders of such Net Insurance Proceeds Capital Stock in the Borrower that would otherwise be required to be applied payable or reserved against as a mandatory result thereof) to the repayment hereunder shall be applied of the Loans as a mandatory repayment in accordance with the requirements of Sections 5.02(g) required pursuant to this Section 4.02 and (hii) on the last day of such 12-month (or, to the extent applicablethat the Borrower has reasonably determined in good faith that repatriation of, 18-monthor the obligation to repatriate, any of or all the Net Cash Proceeds of any Foreign Asset Sale or Excess Cash Flow would have an adverse tax consequence (other than de minimis consequences) period.with respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary, provided that, in the case of this clause (ii) such limitation on prepayments shall apply only for so long as such prepayment, or the obligation to prepay, would result in such tax consequences, and to the extent that within two years of the date on which such payment is required, the Borrower determines in good faith that such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow cea
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Infrastructure & Energy Alternatives, Inc.)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 20212018, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 1,000,000 and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $22,500,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofLoans. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Lead Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments(x) voluntary prepayments of Term Loans, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower Refinancing Notes and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following Indebtedness under the making of such Investment, was and remains a Restricted SubsidiaryABL Credit Agreement), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $22,500,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Insurance Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereofrepayment. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Sale Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, Lead Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(c) (other than Refinancing Term Loans and Refinancing Notes), (d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may instead be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments with the proceeds of Refinancing Term Loans and Refinancing Notes pursuant to Section 5.02(c) shall be applied to the appropriate Tranche or Tranches of Term Loans selected by Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made; provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, an amount equal to the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrowers hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any portion of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, an amount equal to such portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that Lead Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax costs, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans pursuant to this Section 5.02.
(k) The Borrowers shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of Lead Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds may be retained by the Borrowers in accordance with this Agreement.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Interior Logic Group Holdings, LLC)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) with respect to the Initial Term Loans (other than 2021 Incremental Term Loans), on the last Business Day of each March, June, September and December, (a) commencing with December 31June 30, 20212021 and ending on the 2021 Incremental Term Loans Conversion Date, an aggregate principal amount of equal to $1,625,000 and (ii) with respect to the Initial Term Loans (including, for the avoidance of doubt, 2021 Incremental Term Loans), on the last Business Day of each March, June, September and December, commencing after the 2021 Incremental Term Loans Conversion Date, an aggregate principal amount equal to $5,312,5002,254,722.93, and (iiiii) on the Initial Maturity Date for Initial Term Loans (including, for the avoidance of doubt, 2021 Incremental Term Loans), the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and through (iiiii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”). 2021 Incremental Term Loans shall not be subject to mandatory repayments pursuant to this Section 5.02 prior to the 2021 Incremental Term Loans Conversion Date.
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofLoans. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Lead Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments(x) voluntary prepayments of Term Loans, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower Refinancing Notes and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following Indebtedness under the making of such Investment, was and remains a Restricted SubsidiaryABL Credit Agreement), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing First Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $27,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Insurance Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereofrepayment. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Sale Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, Lead Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO RateTerm SOFR Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO RateTerm SOFR Term Loans were made; provided that: (i) repayments of LIBO Rate Term SOFR Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO RateTerm SOFR Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrowers hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Lead Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that Lead Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrowers shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of Lead Borrower’s repayment notice and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled.
Appears in 1 contract
Sources: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (eachthe Borrowers, a “Scheduled Repayment Date”)jointly and severally, Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31June 30, 20212017, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 7,452,532.00 and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral)Sale, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $10,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by the Lead Borrower and its Restricted Subsidiaries in any fiscal year of the Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofif no Event of Default then exists. Notwithstanding the foregoing, the Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required (i) in the case of ABL Collateral (as defined in the ABL Intercreditor Agreement), to be applied prepay Indebtedness under the ABL Credit Agreement or any other Indebtedness secured by Liens ranking senior to the Liens securing the Indebtedness hereunder on such ABL Collateral (as a mandatory repayment hereunder defined in the Intercreditor Agreement) and in the case of revolving borrowings, to the extent accompanied by permanent reductions in commitments with respect thereto or (ii) to reinvest in the purchase of assets useful in the business of the Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Lead Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Lead Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount equal to the remainder of (i) the Applicable Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all (x) voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other Indebtedness secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement), during such Excess Cash Flow Payment Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which the Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event, an amount equal to 100% of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Section 5.02(g) and (h); provided, however, with respect to no more than $10,000,000 in the aggregate of such Net Insurance Proceeds received by the Lead Borrower and its Restricted Subsidiaries in any fiscal year of the Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment if no Event of Default then exists. Notwithstanding the foregoing, the Lead Borrower may apply such Net Insurance Proceeds (i) in the case of ABL Collateral (as defined in the ABL Intercreditor Agreement), to prepay Indebtedness under the ABL Credit Agreement or any other Indebtedness secured by Liens ranking senior to the Liens securing the Indebtedness hereunder on such ABL Collateral (as defined in the Intercreditor Agreement) and in the case of revolving borrowings, to the extent accompanied by permanent reductions in commitments with respect thereto or (ii) to reinvest in the purchase of assets useful in the business of the Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such proceeds (or, if within such 12-month period, the Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Sale Proceeds, within 18 months following the date of receipt of such proceeds) (and, in connection therewith, shall thereafter promptly provide such other information with respect to such reinvestment as the Administrative Agent may from time to time reasonably request); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Lead Borrower or any of its Restricted Subsidiaries of such Net Insurance Proceeds, the Lead Borrower or any of its Restricted Subsidiaries have not so used all or a portion of such Net Insurance Proceeds otherwise required to be applied as a mandatory repayment pursuant to this sentence, the remaining portion of such Net Insurance Proceeds shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(c), (d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made, provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Initial Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the relevant Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of such Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Initial Term Loans pursuant to this Section 5.02 or (ii) to the extent that such Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Lead Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of the Lead Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds must first be offered to prepay Indebtedness under the Second Lien Credit Agreement in accordance with the terms thereof and, if further declined, may be retained by the Lead Borrower in accordance with this Agreement (“Retained Declined Proceeds”).
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Mandatory Repayments. (a) In addition to If any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower Indebtedness shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount of Initial Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower incurred by Holdings or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than any Indebtedness permitted to be incurred in accordance with Section 8.01 (excluding Section 8.01(d) any Indebtedness incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans2.17)), not later than two Business Days after the incurrence of such Indebtedness, an amount equal to 100% of the Net Debt Cash Proceeds therefrom thereof shall be applied toward the prepayment of the Term Loans as a mandatory repayment set forth in accordance with the requirements of Sections 5.02(g) and (h)this Section 4.02.
(db) In addition If, for any Excess Cash Flow Period, there shall be Excess Cash Flow for such Excess Cash Flow Period in excess of $2,500,000, an amount equal to the excess of (i) the applicable ECF Percentage of such Excess Cash Flow over the sum of (ii) to the extent financed with internally generated cash flows and without duplication of any deductions made in the calculation of Excess Cash Flow, the aggregate principal amount of all (x) optional prepayments of Term Loans (other mandatory repayments than Loans Cancelled pursuant to Section 12.04), Incremental Term Loans and Permitted Incremental Equivalent Debt made, (y) Loans acquired by a Permitted Auction Purchaser and which have been Cancelled and (z) optional prepayments of Revolving Loans, but only to the extent accompanied by a concurrent permanent reduction of the Revolving Commitments in a corresponding amount (other than Loans Cancelled pursuant to Section 12.04), in each case, during such Excess Cash Flow Period, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in this Section 4.02; provided that the amount pursuant to this Section 5.024.02(b) shall be no less than $0. Each such prepayment shall, within 10 days following each commencing with the Fiscal Year ending December 31, 2019, be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the earlier of (i) the date on or after which the Closing Date upon financial statements of Holdings referred to in Section 7.01(a), for the Fiscal Year with respect to which Borrower such prepayment is made, are required to be delivered and (ii) the date such financial statements are actually delivered.
(c) If on any date Holdings or any of its Restricted Subsidiaries receives any shall receive Net Sale Cash Proceeds from any Asset Sale or any Recovery Event, then 100% (other or, if the First Lien Net Leverage Ratio on a Pro Forma Basis for such Asset Sale or Recovery Event, as of the date of the most recently completed Measurement Period, is less than in respect of ABL Collateralor equal to 0.81:1.00 (or 1.08:1.00 if the Specified Acquisition has been consummated), an amount equal to 50%) of such Net Cash Proceeds (the Applicable “Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom Sweep Percentage”) shall be applied as a mandatory repayment within ten Business Days of such date to prepay outstanding Term Loans in accordance with the requirements of Sections 5.02(g) and (h)this Section 4.02; provided, howeverthat the Borrower shall have the option, with respect to an aggregate amount directly or through one or more of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for Subsidiaries, to reinvest such Net Cash Proceeds within one year of receipt thereof (or, if later, 180 days after the most recently ended Test Period, date the Borrower or a Restricted Subsidiary thereof has entered into a binding commitment to reinvest the Net Cash Proceeds thereof prior to the expiration of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries one year period) in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied assets used in or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment)Subsidiaries; provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of all such Net Sale Proceeds, Borrower or such Restricted Subsidiary has Cash Proceeds not so used all or a portion of reinvested within such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to period must be applied in accordance with this Section 5.02(d4.02(c) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal without giving effect to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereofproviso herein.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
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Sources: Credit and Guarantee Agreement (Infrastructure & Energy Alternatives, Inc.)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), the Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December March 31, 20212021December 29, 2023 (a “Scheduled Repayment Date”), an aggregate principal amount of Initial Term B-1 Loans equal to $5,312,500, 0.25% of the aggregate principal amount of all Term B-1 Loans outstanding on the Amendment No. 13 Effective Date and (ii) on the Initial Term B-1 Maturity Date for Initial Term LoansDate, the aggregate principal amount of all Initial Term B-1 Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.202.19, 2.21, Section 2.20 or in connection with voluntary prepayments as provided in Section 5.01 or mandatory prepayments as provided in Section 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term B-1 Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than 10.04, Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five (5) Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Sale Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder pursuant to this sentence shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iiix) the aggregate amount of all Capital Expenditures made or accrued by Borrower voluntary prepayments (including buybacks and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(iiprepayments in connection with Section 5.01(b)) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions Term Loans, Refinancing Notes and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other than Investments Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in Cash Equivalents or in Borrower or a Person thateach case, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted accompanied by Sections 10.03(iii)a permanent reduction in commitments therefor, (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of (x) $27,500,000 50,000,000 and 5.0(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 ten (10) days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event with (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of (x) $55,000,000 50,000,000 and 10(y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, Period in the aggregate of such Net Insurance Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, the Borrower or such and its Restricted Subsidiary Subsidiaries may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, the Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes or Permitted Pari Passu Loans (or, in either case, any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Term Loans were made; provided that: (i) repayments of Term SOFR Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of the Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation other than any such taxes already taken into account by the definition of “Net Sale Proceeds”, “Net Insurance Proceeds” or “Excess Cash Flow”, as applicable) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax cost consequences with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three (3) Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of the Borrower’s repayment notice and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds may be retained by the Borro
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Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower the Borrowers shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) with respect to the Initial Term Loans, on the last Business Day of each March, June, September and December, (a) commencing with December March 31, 20212026, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 1,722,010.39 and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such MACROBUTTON DocID Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Second Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Second Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $45,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofLoans. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Lead Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount amount, the “Excess Cash Flow Payment Amount”) equal to the remainder of (iof(i) the amount by which the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period exceeds $10,000,000 (the “Excess Cash Flow Threshold Amount” and any such amount equal to or below the Excess Cash Flow Threshold Amount, the “Excess Cash Flow Excluded Amount”); less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments(x) voluntary prepayments of Term Loans, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower Refinancing Notes/Loans and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted Indebtedness incurred pursuant to Section 10.05 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes/Loans or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Investments in Cash Equivalents Indebtedness under the ABL Credit Agreement or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiaryany other revolving loans), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (iiii)(x) – and (viiy), made during the relevant such Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and but prior to the time such related Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04)Date, shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); providedprovided that, that no prepayment shall be required with respect to the extent any voluntary prepayments of Indebtedness as described in clauses (ii)(x) and (y) above made during the current Excess Cash Flow Payment Period are applied to reduce the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries Payment Amount for the most recently ended Test prior Excess Cash Flow Payment Period pursuant to the foregoing sentence, then such prepayments shall not be deducted with respect to the Excess Cash Flow Payment Amount for the current Excess Cash Flow Payment Period; provided, andfurther, that the Lead Borrower may, in such caseits sole discretion, elect to apply all or a portion of the required prepayment shall be only Excess Cash Flow Excluded Amount as a repayment in accordance with the amount in excess thereof.requirements of Sections 5.02(g) and (h). MACROBUTTON DocID
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Second Restatement Effective Date upon which Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $45,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Insurance Proceeds received by Lead Borrower and its Restricted Subsidiaries in any fiscal year of Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereofrepayment. Notwithstanding the foregoing, Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds proceeds (or, if within such 12-month period, Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Insurance Sale Proceeds, within 180 days 18 months following the date of receipt of such 12-month period during which Borrower so committed to such plan of reinvestmentproceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Lead Borrower or such any of its Restricted Subsidiary Subsidiaries of such Net Insurance Proceeds, Lead Borrower or such any of its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes or Permitted Pari Passu Loans (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term SOFR Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term SOFR Term Loans were made; provided that: (i) repayments of Term SOFR Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term SOFR Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow MACROBUTTON DocID attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrowers hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Lead Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that Lead Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrowers shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of Lead Borrower’s repayment notice and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (VERRA MOBILITY Corp)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 20212024, an aggregate principal amount of Initial Term B-1 Loans equal to $5,312,500, 2,900,000 and (ii) on the Initial Maturity Date for Initial Term B-1 Loans, the aggregate principal amount of all Initial Term B-1 Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term B-1 Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 120,000,000133,700,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Sale Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii), (xxiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Qualified Securitization Transaction or Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 30,000,00033,425,000 and 5.02.5% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 120,000,000133,700,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Secured Notes, any Permitted Pari Passu Notes, any Permitted Pari Passu Loans or Refinancing Notes/Loans (or, in each case, any Permitted Refinancing Indebtedness in respect of any of the foregoing that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase of pari passu Indebtedness from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to prepay Term Loans in accordance with clause (d) or (f) above may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of Term Benchmark Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such Term Benchmark Term Loans were made; provided that: (i) repayments of Term Benchmark Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such Term Benchmark Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by ▇▇▇▇▇▇▇▇ as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, an amount equal to the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02, (ii) to the extent that Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Recovery Event, or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences, an amount equal to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 5.02 and (iii) to the extent that the Net Sale Proceeds of an Asset Sale are attributable to a non-Wholly-Owned Subsidiary, the Net Insurance Proceeds of a Recovery Event are attributable to a non-Wholly-Owned Subsidiary or Excess Cash Flow is attributable to a non-Wholly-Owned Subsidiary, the amount of such Net Sale Proceeds, such Net Insurance Proceeds and such Excess Cash Flow used to calculate the required prepayment pursuant to this Section 5.02 shall not exceed the lesser of (x) an amount corresponding to the proportionate ownership interests in such non-Wholly-Owned Subsidiary or (y) an amount corresponding to the amount of distributions permitted to be made from such non-Wholly-Owned Subsidiary to its direct or indirect parent entity that is a Wholly-Owned Subsidiary for such purposes at the time such prepayment is required to be made.
(k) Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of ▇▇▇▇▇▇▇▇’s Notice of Loan Prepayment and of such ▇▇▇▇▇▇’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amoun
Appears in 1 contract
Sources: Term Loan Credit Agreement (Ingram Micro Holding Corp)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), thethe Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31the last Business Day of the first full fiscal quarter after the ClosingJune 30, 20212020 (a “Scheduled Repayment Date”), an aggregate principal amount of Initial Term B Loans equal to $5,312,500, 0.25% of the aggregate principal amount of all Initial Term B Loans outstanding on the ClosingAmendment No. 1 Effective Date and (ii) on the Initial Term B Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term B Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or or in connection with voluntary prepayments as provided in Section 5.01 or mandatory prepayments as provided in Section 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, the Borrower shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans and Term B Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $50,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofif no Event of Default then exists. Notwithstanding the foregoing, the Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount equal to the remainder of (i) the Applicable Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all (x) voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other revolving credit facility secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement), during such Excess Cash Flow Payment Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which the Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to 100% of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Section 5.02(g) and (h); provided, however, with respect to no more than $50,000,000 in the aggregate of such Net Insurance Proceeds received by the Borrower and its Restricted Subsidiaries in any fiscal year of the Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment if no Event of Default then exists. Notwithstanding the foregoing, the Borrower may apply such Net Insurance Proceeds to reinvest in the purchase of assets useful in the business of the Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such proceeds (or, if within such 12-month period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Sale Proceeds, within 18 months following the date of receipt of such proceeds); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Borrower or any of its Restricted Subsidiaries of such Net Insurance Proceeds, the Borrower or any of its Restricted Subsidiaries have not so used all or a portion of such Net Insurance Proceeds otherwise required to be applied as a mandatory repayment pursuant to this sentence, the remaining portion of such Net Insurance Proceeds shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made; provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of the Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Term Loans pursuant to this Section 5.02 or (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of the Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds may be retained by the Borrower in accordance with this Agreement.
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Mandatory Repayments. (a) In addition One hundred (100%) of the amount of any prepayment permitted hereunder that is offered to any other mandatory repayments holders of Junior Debt pursuant to this Section 5.02, on each date set forth below (each, a “Scheduled Repayment Date”), Borrower 7.5(f)(x) and refused by any or all of such holders shall be required to repay paid to the Administrative Agent for the ratable account within five (5) Business Days of the Lenders (i) on notice given to Administrative Agent pursuant to Section 2.12(f), following the last Business Day receipt by the Borrower or any of each March, June, September and December, (a) commencing with December 31, 2021, an aggregate principal amount its Subsidiaries of Initial such refusal as a mandatory payment of the Obligations constituting Tranche B-2 Term Loans equal to $5,312,500, and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Tranche B-3 Term Loans that remain outstanding on such date (each such repayment described in clauses (i) a pro rata basis and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection accordance with any Extension as provided in the terms of this Agreement and Section 2.14, a “Scheduled Repayment”2.12(g).
(b) In addition If the Borrower or any Subsidiary shall incur any Indebtedness after the Closing Date (other than Indebtedness permitted under Section 7.1), one hundred percent (100%) of the Net Cash Proceeds received by the Borrower or such Subsidiary from such incurrence shall be paid to any other the Administrative Agent on the date of receipt of the proceeds thereof by the Borrower or such Subsidiary as a mandatory repayments pursuant payment of the Loans. All such payments shall be applied to the Obligations in the order set forth in Section 2.12(g) below. Nothing in this Section 5.02, 2.12(b) shall authorize the Borrower shall be required or any Subsidiary to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans incur any Indebtedness except to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan Amendment, Refinancing Term Loan Amendment or Extension Amendment applicable theretopermitted by this Agreement.
(c) In addition Seventy percent (70%) of the Net Cash Proceeds from any Disposition or series of related Dispositions by any of the Borrower or any of its Subsidiaries made after the Closing Date which exceed $5,000,000 in the aggregate in any fiscal year, shall be paid to the Administrative Agent on the date of receipt thereof by such Person as a mandatory payment of the Obligations constituting Tranche B-2 Term Loans on a pro rata basis and thirty percent (30%) of the Net Cash Proceeds from any other Disposition or series of related Dispositions by any of the Borrower or any of its Subsidiaries made after the Closing Date which exceed $5,000,000 in the aggregate in any fiscal year, shall be paid to the Administrative Agent on the date of receipt thereof by such Person as a mandatory repayments payment of the Obligations constituting Tranche B-3 Term Loans on a pro rata basis (it being understood that, subject to the following sentence, not less than 100% of the Net Cash Proceeds from any Disposition or series of related Dispositions in excess of $5,000,000 in the aggregate in any fiscal year shall be subject to the mandatory prepayment set forth in this Section 2.12(c) and applied to the Tranche B-2 Term Loans and the Tranche B-3 Term Loans in accordance with the allocation set forth above). Notwithstanding the foregoing and provided no Default or Event of Default has occurred and is continuing on the date of such Disposition or on the date of, or any date after such Disposition and prior to, any reinvestment permitted pursuant to this clause (c), such Person shall not be required to pay such Net Cash Proceeds to the Administrative Agent for payment of such Obligations to the extent such Person reinvests up to $50,000,000 per annum of Net Cash Proceeds (the “Disposition Reinvestment Amount”), in productive assets of a kind then used or usable in the business of the Loan Parties (provided that proceeds of Sale/Leaseback Transactions permitted pursuant to Section 5.027.09 shall only be permitted to be reinvested in replacement facilities), within 10 days following each one (1) year after the date of such Disposition; provided that (i) pending any such reinvestment, such Disposition Reinvestment Amount shall be held at all times prior to such reinvestment in a deposit account subject to a Deposit Account Control Agreement, (ii) proceeds received from sale of Collateral may only be reinvested in Collateral, (iii) proceeds received from assets sold by a Loan Party must be reinvested in a Loan Party and (iv) the Disposition Reinvestment Amount shall be shared with reinvestments made pursuant to Section 2.12(d). In the event that the Disposition Reinvestment Amount is not reinvested by the applicable Person as permitted pursuant to the foregoing sentence within the time periods provided, or a Default or Event of Default occurs prior to such reinvestment, the Borrower shall immediately pay such Disposition Reinvestment Amount to the Administrative Agent as a mandatory payment of the Obligations. Notwithstanding the foregoing, all Net Cash Proceeds received from the sale of real estate assets and the Bounce Sale must be used to pay down the Term Loans, as set forth above and shall not benefit from the reinvestment rights set forth above. Nothing in this clause (c) shall authorize the Borrower or any Subsidiary to effect any Disposition except to the extent permitted by this Agreement.
(d) Seventy percent (70%) of the Net Cash Proceeds from any Event of Loss of any of the Borrower or any of its Subsidiaries occurring on or after the Closing Date upon which exceed $5,000,000 in the aggregate in any fiscal year, shall be paid to the Administrative Agent on the date of receipt thereof by such Person as a mandatory payment of the Obligations constituting Tranche B-2 Term Loans on a pro rata basis and thirty percent (30%) of the Net Cash Proceeds from any Event of Loss of any of the Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date occurring on or after the Closing Date upon which Borrower or exceed $5,000,000 in the aggregate in any fiscal year, shall be paid to the Administrative Agent on the date of its Restricted Subsidiaries receives any receipt thereof by such Person as a mandatory payment of the Obligations constituting Tranche B-3 Term Loans on a pro rata basis (it being understood that, subject to the following sentence, not less than 100% of the Net Sale Cash Proceeds from any Asset Sale (other than Event of Loss in respect excess of ABL Collateral), an amount equal $5,000,000 in the aggregate in any fiscal year shall be subject to the Applicable Asset Sale/Recovery Event Prepayment Percentage of mandatory prepayment set forth in this Section 2.12(d) and applied to the Net Sale Proceeds therefrom shall be applied as a mandatory repayment Tranche B-2 Term Loans and the Tranche B-3 Term Loans in accordance with the requirements allocation set forth above). Notwithstanding the foregoing and provided no Default or Event of Sections 5.02(g) Default has occurred and (h); provided, however, with respect to an aggregate amount of no more than is continuing on the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, date of such Net Sale Proceeds received by Borrower Event of Loss or on the date of, or any date after such Event of Loss and its Restricted Subsidiaries in prior to, any fiscal year of Borrowerreinvestment pursuant to this clause (d), such Net Sale Proceeds Person shall not be required to be so applied or used pay such Net Cash Proceeds to make mandatory repayments the Administrative Agent for payment of Term Loans and any required prepayment shall be only the amount in excess thereof. Notwithstanding Obligations to the foregoing, Borrower or extent such Restricted Subsidiary may apply all or a portion Person reinvests up to Disposition Reinvestment Amount of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Cash Proceeds (orthe “Event of Loss Reinvestment Amount”), if within to repair or replace the assets subject to such 12-month period, Borrower or any Event of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale ProceedsLoss, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months one (or, to the extent applicable, 18 months1) year after the date of receipt such Event of Loss; provided that (i) pending any such reinvestment, such Event of Loss Reinvestment Amount shall be held at all times prior to such reinvestment in a deposit account subject to a Deposit Account Control Agreement and (ii) the Disposition Reinvestment Amount shall be shared with any reinvestments made pursuant to Section 2.12(c) above. In the event that the Event of Loss Reinvestment Amount is not reinvested by Borrower or such Restricted Subsidiary of such Net Sale Proceeds, Borrower or such Restricted Subsidiary has not so used all Person as permitted by the foregoing sentence within the time periods provided or a portion Default or Event of Default occurs prior to such Net Sale Proceeds that would otherwise be required reinvestment, the Borrower shall immediately pay such Event of Loss Reinvestment Amount to be applied the Administrative Agent as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result payment of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”Obligations.
(e) In addition Not later than five (5) Business Days after the date on which the annual financial statements are, or are required to any other mandatory repayments pursuant be, delivered under Section 5.1(a) with respect to this Section 5.02, on each Excess Cash Flow Payment DatePeriod, an amount (such amount the “Borrowers shall calculate Excess Cash Flow Payment Amount”) for such Excess Cash Flow Period and the Borrower shall apply an amount equal to the remainder of (i) the Applicable ECF Prepayment Required Percentage of such Excess Cash Flow minus (ii) to the extent not financed using the proceeds of the incurrence of Indebtedness), the sum of (A) the amount of any voluntary payments during such Excess Cash Flow Period (plus, without duplication of any amounts previously deducted under this clause (A), the amount of any voluntary payments after the end of such Excess Cash Flow Period but before the date of prepayment under this clause (e)) of (x) Term Loans (it being understood that the amount of any such payment constituting a Discounted Voluntary Prepayment shall be calculated to equal the amount of cash used and not the principal amount deemed prepaid therewith) and (y) other Indebtedness secured by a Lien on Collateral that ranks pari passu with the Liens securing the Obligations (provided that (i) in the case of the prepayment of any revolving Indebtedness, there was a corresponding reduction in commitments and (ii) the maximum amount of each such prepayment of Indebtedness that may be counted for purposes of this clause (A)(y) shall not exceed the amount that would have been prepaid in respect of such Indebtedness if such prepayment had been applied on a ratable basis among the Term Loans and such other Indebtedness (determined based on the aggregate outstanding principal amount of Term Loans and the aggregate principal amount of such other Indebtedness on the date of such prepayment of such other Indebtedness)) and (B) the amount of any prepayment of Revolving Loans provided that such Revolving Loans are accompanied by a permanent voluntary reduction of Revolving Commitments during such Excess Cash Flow Period (plus, without duplication of any amounts previously deducted under this clause (B), the amount of any prepayment of Revolving Loans accompanied by permanent voluntary reductions of Revolving Commitments after the end of such Excess Cash Flow Period but before the date of prepayment under this clause (e)) to prepay Tranche B-2 Term Loans and Tranche B-3 Term Loans, on a pro rata basis; provided that solely with respect to the Excess Cash Flow for accrued during the related fiscal year ending December 31, 2026, the first $50,000,000 of any Excess Cash Flow Payment Period less shall be used to prepay Tranche B-3 Term Loans only. Such calculation will be set forth in a certificate signed by a Responsible Officer of the Borrower delivered to the Administrative Agent setting forth the amount, if any, of Excess Cash Flow for such fiscal year, the amount of any required prepayment in respect thereof and the calculation thereof in reasonable detail.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to Sections 2.12(a), 2.12(c), 2.12(d) or 2.12(e) at least five (5) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent shall promptly notify each Term Loan Lender of the contents of any such prepayment notice and of such Term Loan Lender’s ratable portion of such prepayment (based on such Lender’s pro rata share of each relevant Class of Term Loans). Any Term Loan Lender (a “Declining Lender”) may elect, by delivering written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day after the date of such Term Loan Lender’s receipt of notice from the Administrative Agent regarding such prepayment, that the full amount of any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Loan Lender pursuant to Sections 2.12(a), 2.12(c), 2.12(d) or 2.12(e) not be made (such declined amounts, the “Retained Declined Proceeds”). If a Term Loan Lender fails to deliver the notice setting forth such rejection of a prepayment to the Administrative Agent within the time frame specified above or such notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. In the event that the aggregate amount of Retained Declined Proceeds is greater than $0, such amount shall be retained by the Borrower.
(i) If the aggregate Initial Revolving Credit Exposure at such time exceeds the Initial Revolving Commitments then in effect or (ii) the aggregate amount Non-Extended Revolving Credit Exposure at such time exceeds the Non-Extended Revolving Commitments then in effect, then, within three (3) Business Days after receipt of all Voluntary Pari Passu Debt Prepaymentsthe Administrative Agent’s notice to the Borrower, less (iii) the aggregate amount Borrower shall prepay the applicable Revolving Loans or, in the case of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (iii) above, Swingline Loans and/or Cash Collateralize the LC Exposure, in each case of the foregoing clauses (ii) – (vii)case, made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is an aggregate amount equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereofexcess.
(fh) In addition to Except as expressly specified herein, any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment payment due hereunder shall be applied to reduce the subsequent scheduled repayments of the Term Loans on a pro rata basis in direct order of maturity, or as a mandatory repayment otherwise provided in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) periodany Incremental Amendment.
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Sources: Credit Agreement (E.W. SCRIPPS Co)
Mandatory Repayments. (a) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date set forth below (eachthe Borrowers, a “Scheduled Repayment Date”)jointly and severally, Borrower shall be required to repay to the Administrative Agent for the ratable account of the Lenders (i) on the last Business Day of each March, June, September and December, (a) commencing with December 31, 2021the last Business Day of the first full fiscal quarter after the Closing Date, an aggregate principal amount of Initial Term Loans equal to $5,312,500, 1.25% of the aggregate principal amount of all Initial Term Loans outstanding on the Closing Date and (ii) on the Initial Maturity Date for Initial Term Loans, the aggregate principal amount of all Initial Term Loans that remain outstanding on such date (each such repayment described in clauses (i) and (ii), as the same may be reduced as provided in this Agreement, including in Section 2.19, 2.20, 2.21, 5.01 or 5.02(g), or as a result of the application of prepayments or otherwise in connection with any Extension as provided in Section 2.14, a “Scheduled Repayment”).
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, Borrower the Borrowers shall be required to make, with respect to each new Tranche (i.e., other than Initial Term Loans, which are addressed in the preceding clause (a)) of Term Loans to the extent then outstanding, scheduled amortization payments of such Tranche of Term Loans to the extent, and on the dates and in the principal amounts, set forth in the Incremental Term Loan AmendmentCommitment Agreement, Refinancing Term Loan Amendment or Extension Amendment applicable thereto.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Lead Borrower or any of its Restricted Subsidiaries receives any cash proceeds from any issuance or incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 10.04 (other than Refinancing Term Loans and Refinancing Notes/Loans)), an amount equal to 100% of the Net Debt Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days five Business Days following each date on or after the Closing Date upon which the Lead Borrower or any of its Restricted Subsidiaries receives any Net Sale Proceeds from any Asset Sale (other than in respect of ABL Collateral)Sale, an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage 100% of the Net Sale Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than $10,000,000 in the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, aggregate of such Net Sale Proceeds received by the Lead Borrower and its Restricted Subsidiaries in any fiscal year of the Lead Borrower, such Net Sale Proceeds shall not be required to be so applied or used to make mandatory repayments of Term Loans and any required prepayment shall be only the amount in excess thereofif no Event of Default then exists. Notwithstanding the foregoing, the Lead Borrower or such Restricted Subsidiary may apply all or a portion of such Net Sale Proceeds that would otherwise be required (i) in the case of ABL Collateral (as defined in the ABL Intercreditor Agreement), to be applied prepay Indebtedness under the ABL Credit Agreement or any other Indebtedness secured by Liens ranking senior to the Liens securing the Indebtedness hereunder on such ABL Collateral (as a mandatory repayment hereunder defined in the Intercreditor Agreement) and in the case of revolving borrowings, to the extent accompanied by permanent reductions in commitments with respect thereto or (ii) to reinvest in the purchase of assets useful in the business of the Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Sale Proceeds (or, if within such 12-month period, the Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Sale Proceeds, within 180 days following such 12-month period during which the Lead Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Lead Borrower or such its Restricted Subsidiary Subsidiaries of such Net Sale Proceeds, the Lead Borrower or such its Restricted Subsidiary has Subsidiaries have not so used all or a portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunderpursuant to this sentence, an amount equal to the remaining portion of such Net Sale Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period. Any Net Sale Proceeds in respect of any such Asset Sale not required to be applied in accordance with this Section 5.02(d) as a result of the application of the leverage-based step-down in the definition of Applicable Asset Sale/Recovery Event Prepayment Percentage shall collectively constitute “Leverage Excess Proceeds”.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount (such amount the “Excess Cash Flow Payment Amount”) equal to the remainder of (i) the Applicable ECF Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all Voluntary Pari Passu Debt Prepayments, less (iii) the aggregate amount of all Capital Expenditures made or accrued by Borrower and its Restricted Subsidiaries, less (iv) without duplication of any amounts deducted pursuant to clause (b)(ii) of the definition of “Excess Cash Flow,” the aggregate amount of all cash payments made in respect of any Permitted Acquisitions and other Investments permitted pursuant to Section 10.05 (other than Investments in Cash Equivalents or in Borrower or a Person that, prior to and immediately following the making of such Investment, was and remains a Restricted Subsidiary), less (v) Dividends made in cash to the extent permitted by Sections 10.03(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xiii) or (xv), less (vi) the portion of transaction costs and expenses related to items (ii) – (v) above (to the extent not deducted in determining Consolidated Net Income), less (vii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash that are required to be made in connection with any prepayment, buyback or redemption of Indebtedness pursuant to clause (ii) above, in each case of the foregoing clauses (ii) – (vii), made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due (or, at the election of Borrower, if committed to be made during the relevant Excess Cash Flow Payment Period or after such Excess Cash Flow Payment Period and prior to the time such Excess Cash Flow Payment Amount is due), to the extent not financed with the proceeds of long-term Indebtedness (excluding ABL Revolving Loans and borrowings under any similar working capital facility permitted under Section 10.04 or any Receivables Facility permitted under Section 10.04), shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, that no prepayment shall be required with respect to any Excess Cash Flow Payment Period to the extent Excess Cash Flow for such period is equal to or less than the greater of $27,500,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and, in such case, the required prepayment shall be only the amount in excess thereof.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event (other than in respect of ABL Collateral), an amount equal to the Applicable Asset Sale/Recovery Event Prepayment Percentage of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, with respect to an aggregate amount of no more than the greater of $55,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period, of such Net Insurance Proceeds received by Borrower and its Restricted Subsidiaries in any fiscal year of Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment and any required prepayment shall be only the amount in excess thereof. Notwithstanding the foregoing, Borrower or such Restricted Subsidiary may apply all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder to reinvest in the purchase of assets useful in the business of Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such Net Insurance Proceeds (or, if within such 12-month period, Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest such Net Insurance Proceeds, within 180 days following such 12-month period during which Borrower so committed to such plan of reinvestment); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by Borrower or such Restricted Subsidiary of such Net Insurance Proceeds, Borrower or such Restricted Subsidiary has not so used all or a portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder, an amount equal to the remaining portion of such Net Insurance Proceeds that would otherwise be required to be applied as a mandatory repayment hereunder shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Flow Payment Date, an amount equal to the remainder of (i) the Applicable Prepayment Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment Period less (ii) the aggregate amount of all (x) voluntary prepayments of Term Loans, Refinancing Notes and Indebtedness incurred pursuant to Section 10.04(xxvii) that rank pari passu with the Term Loans (limited, in the case of any voluntary prepayment in accordance with the provisions of Section 2.19 or Section 2.20 or similar provisions in the definitive documentation with respect to such Refinancing Notes or other Indebtedness, to the cash payment made by any Credit Party or Restricted Subsidiary therefor) and (y) prepayments of revolving loans under the ABL Credit Agreement or any other Indebtedness secured by a Lien on the Collateral ranking pari passu with the Lien on the Collateral securing the ABL Credit Agreement or senior or pari passu with the Lien on the Collateral securing the Indebtedness hereunder, in each case, to the extent accompanied by a permanent reduction in commitments therefor and not financed with the incurrence of other long-term Indebtedness (other than Indebtedness under the ABL Credit Agreement), during such Excess Cash Flow Payment Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h).
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10 days following each date on or after the Closing Date upon which the Lead Borrower or any of its Restricted Subsidiaries receives any Net Insurance Proceeds from any Recovery Event, an amount equal to 100% of the Net Insurance Proceeds from such Recovery Event shall be applied as a mandatory repayment in accordance with the requirements of Section 5.02(g) and (h); provided, however, with respect to no more than $10,000,000 in the aggregate of such Net Insurance Proceeds received by the Lead Borrower and its Restricted Subsidiaries in any fiscal year of the Lead Borrower, such Net Insurance Proceeds shall not give rise to a mandatory repayment if no Event of Default then exists. Notwithstanding the foregoing, the Lead Borrower may apply such Net Insurance Proceeds (i) in the case of ABL Collateral (as defined in the ABL Intercreditor Agreement), to prepay Indebtedness under the ABL Credit Agreement or any other Indebtedness secured by Liens ranking senior to the Liens securing the Indebtedness hereunder on such ABL Collateral (as defined in the Intercreditor Agreement) and in the case of revolving borrowings, to the extent accompanied by permanent reductions in commitments with respect thereto or (ii) to reinvest in the purchase of assets useful in the business of the Lead Borrower and its Restricted Subsidiaries within 12 months following the date of receipt of such proceeds (or, if within such 12-month period, the Lead Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Sale Proceeds, within 18 months following the date of receipt of such proceeds) (and, in connection therewith, shall thereafter promptly provide such other information with respect to such reinvestment as the Administrative Agent may from time to time reasonably request); provided, further, that if within 12 months (or, to the extent applicable, 18 months) after the date of receipt by the Lead Borrower or any of its Restricted Subsidiaries of such Net Insurance Proceeds, the Lead Borrower or any of its Restricted Subsidiaries have not so used all or a portion of such Net Insurance Proceeds otherwise required to be applied as a mandatory repayment pursuant to this sentence, the remaining portion of such Net Insurance Proceeds shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h) on the last day of such 12-month (or, to the extent applicable, 18-month) period, as the case may be.
(g) Each amount required to be applied pursuant to Sections 5.02(c), (d), (e) and (f) in accordance with this Section 5.02(g) shall be applied to repay the outstanding principal amount of Term Loans, with each Tranche of then outstanding Term Loans to be allocated its Term Loan Percentage of each amount so required to be applied; provided that to the extent any Permitted Pari Passu Notes (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) requires any mandatory prepayment or repurchase from any Net Sale Proceeds or Net Insurance Proceeds that would otherwise be required to be applied to prepay Term Loans in accordance with clause (d) or (f) above, up to a pro rata portion (based on the aggregate principal amount of Term Loans and such pari passu secured Indebtedness then outstanding) of such Net Sale Proceeds or Net Insurance Proceeds may be applied to prepay or repurchase such pari passu secured Indebtedness in lieu of prepaying Term Loans as provided above. Prepayments pursuant to Section 5.02(c) shall be applied to the Tranche or Tranches of Term Loans selected by the Lead Borrower. Except as otherwise provided below, all repayments of outstanding Term Loans of a given Tranche pursuant to Sections 5.02(c), (d), (e) and (f) (and applied pursuant to this clause (g)) shall be applied to reduce the Scheduled Repayments of the applicable Tranche in direct order of maturity of such Scheduled Repayments.
(h) With respect to each repayment of Term Loans required by this Section 5.02, the Lead Borrower may (subject to the priority payment requirements of Section 5.02(g)) designate the Types of Term Loans of the applicable Tranche which are to be repaid and, in the case of LIBO Rate Term Loans, the specific Borrowing or Borrowings of the applicable Tranche pursuant to which such LIBO Rate Term Loans were made, provided that: (i) repayments of LIBO Rate Term Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all such LIBO Rate Term Loans of the applicable Tranche with Interest Periods ending on such date of required repayment and all Base Rate Term Loans of the applicable Tranche have been paid in full; and (ii) each repayment of any Term Loans made pursuant to a Borrowing shall be applied pro rata among such Term Loans. In the absence of a designation by the Lead Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, all then outstanding Term Loans of any Tranche of Term Loans shall be repaid in full on the Maturity Date for such Tranche of Term Loans.
(j) Notwithstanding any other provisions of this Section 5.02, (i) to the extent that any or all of the Net Sale Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Insurance Proceeds of any Recovery Event incurred by a Foreign Subsidiary (a “Foreign Recovery Event”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law or applicable organizational documents of such Foreign Subsidiary from being repatriated to the United States, the portion of such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Initial Term Loans at the times provided in this Section 5.02 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law or applicable organizational documents of such Foreign Subsidiary will not permit repatriation to the United States (the relevant Borrower hereby agreeing to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation and/or minimize any such costs of prepayment and/or use the other cash sources of such Borrower and its Restricted Subsidiaries to make the relevant prepayment), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow is permitted under the applicable local law or applicable organizational documents of such Foreign Subsidiary, such repatriation will be immediately effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof and additional costs relating to such repatriation) to the repayment of the Initial Term Loans pursuant to this Section 5.02 or (ii) to the extent that such Borrower has reasonably determined in good faith that repatriation of any of or all the Net Sale Proceeds of any Foreign Asset Sale, Net Insurance Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary.
(k) The Lead Borrower shall notify the Administrative Agent in writing of any mandatory repayment of Term Loans required to be made pursuant to Section 5.02(d) or (f) at least three Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide the amount of such repayment. The Administrative Agent will promptly notify the Lenders of the contents of the Lead Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each Lender may reject all or a portion of its pro rata share of any mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 5.02(d), (e) or (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Lead Borrower no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds must first be offered to prepay Indebtedness under the Second Lien Credit Agreement in accordance with the terms thereof and, if further declined, may be retained by the Lead Borrower in accordance with this Agreement (“Retained Declined Proceeds”).
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