Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below). (ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below.
Appears in 6 contracts
Sources: Joinder and Amendment Agreement (Yesway, Inc.), Credit Agreement (Yesway, Inc.), Joinder and Amendment Agreement (Yesway, Inc.)
Mandatory. (i) Upon Within the incurrence later of five (5) Business Days after the financial statements have been delivered pursuant to Section 6.01(a) for each fiscal year and ninety (90) days after the end of such fiscal year (commencing with the fiscal year ending December 31, 2021), the Borrowers shall, subject to clauses (b)(vi) and (b)(vii) of this Section 2.05, cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus (B) the sum of (1) all voluntary prepayments of Term Loans pursuant to Section 2.05(a)(v), in an amount equal to the discounted amount actually paid in respect of the principal amount of such Term Loans, during such fiscal year or issuance after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all other voluntary prepayments of Term Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, (3) all voluntary prepayments of Revolving Credit Loans and loans under any other revolving credit facility secured by the Collateral in whole or in part on a pari passu basis (but without regard to control of remedies) with the Revolving Credit Facilities during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments or such other revolving commitments, as applicable, are permanently reduced by the amount of such payments, (4) without duplication of the amounts deducted in prior fiscal years, the amount of Restricted Payments paid in cash, (5) without duplication of amounts deducted in prior fiscal years, the amount of cash consideration paid by the Borrower and its Restricted Subsidiaries (on a consolidated basis) in connection with investments made during such period (including Permitted Acquisitions, investments constituting Permitted Investments and investments made pursuant to Section 7.06), (6) without duplication of amounts deducted in prior fiscal years, the amount of Capital Expenditures or acquisitions of intellectual property accrued or made in cash during such period and (7) without duplication of amounts deducted in prior fiscal years, and at the option of the Parent Borrower, (i) the aggregate consideration required to be paid in cash by the Parent Borrower or any of its Restricted Subsidiaries of any Indebtedness pursuant to binding contracts (other than Indebtedness expressly permitted the “Contract Consideration”) entered into prior to be incurred or issued the date on which a mandatory prepayment for such period is due pursuant to Section 7.03 2.05(b)(i) and (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicableii) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross any planned cash proceeds received expenditures by the Parent Borrower or any of its Restricted Subsidiaries from (the “Planned Expenditures”), in the case of each of the preceding clauses (i) and (ii), relating to Permitted Acquisitions or other investments, Capital Expenditures, Restricted Payments, acquisitions of intellectual property, any such scheduled payment, repurchase or redemption of Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated that was permitted by the terms of this Agreement to be incurred within ninety and paid, repurchased or redeemed or permitted tax distributions, in each case, to be consummated or made, as applicable, during the period of four consecutive fiscal quarters of the Parent Borrower following the end of such period (90except to the extent financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)); provided that to the extent that the aggregate amount (excluding in each case any amount financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) days thereof of the Parent Borrower or any Restricted Subsidiary) of such Permitted Acquisitions or other investments, Capital Expenditures, Restricted Payments, acquisitions of intellectual property, permitted scheduled payments, repurchases or redemptions of Indebtedness that were permitted by the terms of this Agreement to be incurred and paid, repurchased or redeemed or permitted tax distributions during such following period of four consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures (excluding in connection therewitheach case any amount financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) of the Parent Borrower or any Restricted Subsidiary (unless such Indebtedness has been repaid prior to the date that the Excess Cash Flow payment for such period is due (except to the extent such repayment was financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness))), within one the amount of such shortfall shall be added to the calculation of Excess Cash Flow, at the end of such period of four consecutive fiscal quarters, in the case of each of the immediately preceding clauses (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary), (such prepayments 2), (or Cash Collateralization) to be applied as set forth in clauses 3), (v4), (5), (6) and (vii7), to the extent such prepayments are not funded with the proceeds of long-term Indebtedness (other than revolving Indebtedness); provided, however, that a prepayment of Term Loans pursuant to this Section 2.05(b)(i) below)shall only be required in the amount (if any) by which the ECF Payment Amount for such fiscal year exceeds $50,000,000.
(ii) In (A) If (1) the event that Parent Borrower or any of its Restricted Subsidiaries Disposes of any property or assets pursuant to Section 7.05(j) or (a2) there any Casualty Event occurs, which results in the realization or receipt by the Parent Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrowers shall cause to be Consolidated Excess prepaid on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Parent Borrower or such Restricted Subsidiary of such Net Cash Flow for any Fiscal Year Proceeds, subject to clauses (commencing with the Fiscal Year ending December 31, 2022b)(vi) and (bb)(vii) there are any of this Section 2.05, an aggregate principal amount of Term Loans outstanding in an amount equal to the Applicable Disposition Percentage of such Net Cash Proceeds received; provided that if at the end time that any such prepayment would be required, the Borrowers (or any Restricted Subsidiary) are required to offer to repurchase any Indebtedness secured on a pari passu basis (but without regard to control of remedies) with the Obligations (other than any Indebtedness of the type described in clause (a)(ii)(A) of the definition of “Net Cash Proceeds” that was required to be prepaid or repaid and that resulted in a reduction in the applicable Net Cash Proceeds) pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Fiscal YearDisposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower shall, no later than one-hundred-twenty-five Borrowers (125or any Restricted Subsidiary) days after may apply such Net Cash Proceeds on a pro rata basis (determined on the end basis of such Fiscal Year, prepay an the aggregate outstanding principal amount of the Term Loans equal to (A) and Other Applicable Indebtedness at such time; provided that the ECF Percentage portion of such Consolidated Excess Cash Flow for net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Fiscal Year less (Bnet proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) all voluntary prepayments to the prepayment of the Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other and to the repurchase or prepayment of Other Applicable Indebtedness, in each caseand the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly; provided, secured on a pari passu basis with the Liens securing the Obligations hereunderfurther, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, that to the extent accompanied by a permanent reduction in the relevant commitmentholders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower any event within ten (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions10) and, in the case of all such prepayments made Business Days after the end date of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent periodrejection) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof; provided, further, that no prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrowers (vor such Restricted Subsidiary) and shall have reinvested (viior entered into a binding commitment to reinvest) below.in accordance with Section 2.05(b)(ii)(B); and
Appears in 5 contracts
Sources: Fifth Amended and Restated Credit Agreement (Iqvia Holdings Inc.), Credit Agreement (Iqvia Holdings Inc.), Credit Agreement (Iqvia Holdings Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or i. For any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Excess Cash Flow Period, within ten Business Days after financial statements have been delivered pursuant to Section 7.03 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b) (except Credit Agreement Refinancing Indebtedness)or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay in an aggregate principal amount of the Term Loans equal to (A) 50% (as may be adjusted pursuant to the ECF Percentage proviso below) of such Consolidated Excess Cash Flow for such Fiscal Year less Excess Cash Flow Period, minus (B) all the sum of (1) the aggregate amount of voluntary principal prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit the Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end period commencing on the first day of such Fiscal Year the relevant Excess Cash Flow Period and ending on the date immediately prior to the date such Consolidated on which the relevant Excess Cash Flow prepayment is due or would be required to be made (in including prepayments at a discount to par and open market purchases, with credit given for the case actual amount of the cash payment) (except prepayments of Loans under any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent Tranche that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches), in the relevant commitment, and in the each case of all such prepayments, other than to the extent that any such prepayments are financed prepayment is funded with internally generated cash of the Borrower (and not from the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness or the sale or issuance and (2) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii) and (ix); provided that such percentage in respect of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated any Excess Cash Flow prepayment is due, provided that Period shall be reduced to 25% or 0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the fiscal year to which such amount so deducted shall not be deducted from the Excess Cash Flow Amount in Period relates was equal to or less than 4.50:1.00 or 4.00:1.00, respectively; provided further that no prepayment shall be required with respect to any subsequent period) (such amount, the “Excess Cash Flow Amount”) Period to be applied as set forth in clauses (v) and (vii) belowthe extent Excess Cash Flow for such period is less than $10,000,000.
Appears in 4 contracts
Sources: Credit Agreement (Allison Transmission Holdings Inc), Credit Agreement (Allison Transmission Holdings Inc), Credit Agreement (Allison Transmission Holdings Inc)
Mandatory. (i) Upon Within ten (10) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the incurrence related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall, subject to clause (b)(vi) of this Section 2.05, prepay an aggregate principal amount of Term Loans in an amount (the “ECF Payment Amount”) equal to (A) 50.0% (such percentage as it may be reduced as described below, the “ECF Percentage”) of Excess Cash Flow, if any, for the fiscal year covered by such financial statements (commencing with the fiscal year ending on December 31, 2017) minus (B) the sum of (x) all voluntary prepayments and cancellations of Term Loans, Refinancing Equivalent Debt and Incremental Equivalent Debt during such fiscal year (to the extent not deducted pursuant to this clause (B) in respect of the prior year) or issuance after such fiscal year end and prior to the time the payment pursuant to this Section 2.05(b) is due (including the amount of any voluntary prepayments or cancellation of Term Loans, Refinancing Equivalent Debt and Incremental Equivalent Debt (other than under a revolving facility) made at a discount to par (in an amount equal to the discounted amount actually paid in respect of the principal amount of such Indebtedness)), and (y) all voluntary prepayments of revolving loans that are secured on a pari passu basis with the Term Loans during such fiscal year (to the extent not deducted pursuant this clause (B) in respect of the prior year) or after such fiscal year end and prior to the time the payment pursuant to this Section 2.05(b) is due, in each case to the extent such revolving credit facility commitments are permanently reduced by the amount of such payments, and in the case of each of the immediately preceding clauses (x) and (y), to the extent such prepayments are not financed with the proceeds of other long term Indebtedness (other than revolving or intercompany Indebtedness); provided that to the extent any prepayments described in this clause (B) are made at a discount to par pursuant to any purchases or assignments of the Loans pursuant to Section 2.05(a)(v) or Section 10.07(h) or (m) or otherwise, only the purchase price (and not the par amount) of the applicable Loans or other Indebtedness subject to such purchase or assignment will be deducted from the ECF Payment Amount pursuant to this clause (B); provided, further, that (x) the ECF Percentage shall be 25.0% if the Total Net First Lien Leverage Ratio as of the last day of the fiscal year covered by such financial statements was less than or equal to 3.00:1.00 and greater than 2.50:1.00 and (y) the ECF Percentage shall be 0% if the Total Net First Lien Leverage Ratio as of the last day of the fiscal year covered by such financial statements was less than or equal to 2.50:1.00.
(ii) (A) Subject to clause (b)(vi) of this Section 2.05, if (x) the Borrower or any of its Restricted Subsidiaries Disposes outside of the ordinary course of business of any Indebtedness (other than Indebtedness expressly permitted to be incurred property or issued assets pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)7.05(f), the Borrower shall prepay Section 7.05(j) or Section 7.05(x) (or Cash Collateralizein a Disposition not permitted by this Agreement) or (y) any Casualty Event occurs, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of which results in the gross cash proceeds received by the Borrower realization or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Subsidiary of Net Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal YearProceeds, the Borrower shall, no later than one-hundred-twenty-five shall prepay on or prior to the date which is ten (12510) days Business Days after the end date of the realization or receipt of such Fiscal YearNet Cash Proceeds, prepay an aggregate principal amount of Term Loans equal to 100% (such percentage as it may be reduced as described below, the “Asset Sale Percentage”) of all Net Cash Proceeds realized or received; provided that if at the time that any such prepayment would be required, the Borrower or any Restricted Subsidiary is required to repay, redeem or repurchase or offer to repay, redeem or repurchase Indebtedness that is secured on a pari passu basis (but without regard to control of remedies) with the Obligations pursuant to the terms of the documentation governing or evidencing such Indebtedness with the net proceeds of such Disposition or Casualty Event (such Indebtedness required to be repaid, redeemed or repurchased or offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower or applicable Restricted Subsidiary may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans equal to (A) and Other Applicable Indebtedness at such time; provided that the ECF Percentage portion of such Consolidated Excess Net Cash Flow for Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Fiscal Year less (BNet Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) all voluntary prepayments to the prepayment of the Term LoansLoans and to the repurchase, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other redemption or prepayment of Other Applicable Indebtedness, in each caseand the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly; provided, secured on a pari passu basis with the Liens securing the Obligations hereunderfurther, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, that to the extent accompanied by a permanent reduction in the relevant commitmentholders of Other Applicable Indebtedness decline to have such indebtedness repurchased, redeemed or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the case date of all such prepaymentsrejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, that no prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the extent Administrative Agent of its intent to reinvest in accordance with Section 2.05(b)(ii)(B) except as expressly required therein; provided, further, that such prepayments are financed with internally generated cash (x) the Asset Sale Percentage shall be 50.0% if the Total Net Leverage Ratio as of the Borrower (last day of the most recently ended Test Period was less than or equal to 5.50:1.00 and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) greater than 4.75:1.00 and (viiy) belowthe Asset Sale Percentage shall be 0% if the Total Net Leverage Ratio as of the last day of the most recently ended Test Period was less than or equal to 4.75:1.00.
Appears in 4 contracts
Sources: Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within five (other than Indebtedness expressly permitted to be incurred or issued 5) Business Days after financial statements have been delivered pursuant to Section 7.03 6.01(a) (except Credit Agreement Refinancing Indebtedness)commencing with the fiscal year ending December 31, 2018) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay cause to be offered to be prepaid in accordance with clause (or Cash Collateralizeb)(vi) and (ix) below, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00% of (the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90“ECF Payment Amount”) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the Applicable ECF Percentage of such Consolidated Excess Cash Flow Flow, if any, for the fiscal year covered by such Fiscal Year less financial statements minus (B) the sum of (1) all voluntary prepayments prepayments, repurchases or redemptions of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year fiscal year or after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to (x) Section 2.05(a)(v), the actual purchase price paid in cash pursuant to a “Dutch Auction” and (y) open-market purchases pursuant to Section 10.07(l), the actual purchase price paid in cash pursuant to such purchase), (2) all voluntary prepayments, repurchases or redemptions of Revolving Credit Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, (3) all voluntary prepayments, repurchases or redemptions of any Incremental Equivalent First Lien Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g) and any other Indebtedness (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidcredit facilities, to the extent accompanied by a permanent reduction of the corresponding commitment), in each case secured on a pari passu basis with the relevant commitmentInitial Term Loans, and in repurchased or redeemed on a pro rata basis or less than pro rata basis with the case of all such prepayments, Initial Term Loans (except to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of long-term funded Indebtedness (other than revolving loans)) during such fiscal year or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due, provided that (4) the amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash during such amount so deducted shall not be deducted from period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow Amount prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in any a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility), (5) the aggregate amount of all principal payments of Indebtedness of the Borrower or its Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including (A) the principal component of payments in respect of Financing Leases, (B) the amount of any scheduled repayment of Term Loans pursuant to Section 2.07, and (C) any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but excluding (X) all other voluntary and mandatory prepayments of Term Loans and all prepayments and repayments of Revolving Credit Loans and Swing Line Loans and (Y) all prepayments in respect of any other revolving credit facility, except in the case of clause (Y) to the extent there is an equivalent permanent reduction in commitments thereunder to the extent financed with internally generated cash), (6) cash payments by the Borrower and its Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Borrower and its Restricted Subsidiaries other than Indebtedness, to the extent financed with internally generated cash, (7) the amount of Investments and acquisitions made (or committed to be made) by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in cash pursuant to Section 7.02 (other than Section 7.02(a), (c) or (x)), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (8) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) pursuant to Section 7.06(i) (clauses (i), (ii) or (iii) only) or Section 7.06(g), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (9) the aggregate amount of expenditures made (or committed to be made) by the Borrower and its Restricted Subsidiaries in cash during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such expenditures are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period, to the extent financed with internally generated cash, (10) the aggregate amount of any premium, make-whole or penalty payments paid (or committed to be paid) in cash by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such premium, make-whole or penalty payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) that are required to be made in connection with any prepayment of Indebtedness, to the extent financed with internally generated cash and (11) the amount of cash taxes paid (or committed to be paid) in such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such taxes are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period, in the case of each of the immediately preceding clauses (1) through (11), without duplication of any deduction from Excess Cash Flow in any prior period; provided that prepayments pursuant to this Section 2.05(b)(i) shall only be required for any fiscal year if the amount of ECF Prepayment Amount for such fiscal year is greater than $25,000,000; provided, further, that, for the avoidance of doubt, only amounts in excess of such $25,000,000 shall be prepaid pursuant to this Section 2.05(b)(i).
(ii) If (x) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets (other than any Disposition of any property or assets permitted by Sections 7.05(a), (b), (c), (d), (e), (g), (h), (i), (k), (l), (m) (except to the extent such property is subject to a Mortgage), (n), (o), (p), (q), (r) or (s)), or (y) any Casualty Event occurs, which results in the realization or receipt by the Borrower or Restricted Subsidiary of Net Proceeds, the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(vi) and (ix) below, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of such Net Proceeds, subject to clause (b)(xi) below, an aggregate principal amount of Term Loans in an amount equal to the Applicable Asset Sale Percentage of all Net Proceeds received (such amount, the “Excess Cash Flow AmountApplicable Proceeds”); provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Term Loans pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply the Applicable Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time) and the remaining Net Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that (A) the portion of the Applicable Proceeds (but not the other Net Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(vi) below an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Applicable Indebtedness with the Net Proceeds of such Indebtedness, then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(iii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof. If the Borrower or any other Loan Party incurs any Credit Agreement Refinancing Indebtedness, the Net Proceeds of such Credit Agreement Refinancing Indebtedness shall be used pursuant to clause (iv) of the definition thereof.
(iv) If for any reason the aggregate Revolving Credit Exposures at any time exceeds the aggregate Revolving Credit Commitments then in effect (including, for the avoidance of doubt, as a result of the termination of any Class of Revolving Credit Commitments on the Maturity Date with respect thereto), the Borrower shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(v) Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, Revolver Extension Request or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied as set forth in between series, Classes or tranches of Term Loans as directed by the Borrower (provided that (i) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt, and (ii) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (vi) through (iv) of this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.07(a) in direct order of maturity (without premium or penalty), unless otherwise directed by the Borrower; and (viiC) beloweach such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iv) of this Section 2.05(b) at least four (4) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
Appears in 4 contracts
Sources: Credit Agreement (Alight Group, Inc.), Credit Agreement (Alight Inc. / DE), Credit Agreement (Alight Inc. / DE)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Within five Business Days after financial statements have been delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable6.01(a) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year fiscal year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearrelated Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shallshall cause to be offered to be prepaid in accordance with clauses (b)(vi) and (ix) below, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans in an amount equal to (the “ECF Payment Amount”) (A) the Applicable ECF Percentage of such Consolidated Excess Cash Flow Flow, if any, for the fiscal year covered by such Fiscal Year less financial statements minus (B) the sum of (1) at the Borrower’s option, all voluntary prepayments prepayments, repurchases, or redemptions of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year fiscal year or after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to (x) Section 2.05(a)(v), the aggregate principal amount of Loans purchased, reduced, redeemed or retired pursuant to a “Dutch Auction” and (y) open-market purchases pursuant to Section 10.07(l), the aggregate principal amount of Loans purchased, reduced, redeemed or retired in connection with such purchase), (2) at the Borrower’s option, all voluntary prepayments, repurchases or redemptions of Revolving Credit Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, (3) at the Borrower’s option, all voluntary prepayments, repurchases or redemptions of any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g), Senior Secured Notes, Indebtedness incurred pursuant to the ABL Credit Agreement and any other Indebtedness (in the case of any such Revolving revolving credit facilities (including the ABL Credit Loans or other revolving Indebtedness prepaidAgreement), to the extent accompanied by a permanent reduction of the corresponding commitment), in each case secured by Liens on the relevant commitmentCollateral, and in repurchased or redeemed on a pro rata basis or less than pro rata basis with the case of all such prepayments, Initial Term Loans (except to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of long-term funded Indebtedness (other than revolving loans)) during such fiscal year or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due, provided that (4) the amount of Capital Expenditures or acquisitions of IP Rights to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash during such amount so deducted shall not be deducted from period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow Amount prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in any a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility), (5) the aggregate amount of all principal payments of Indebtedness of the Borrower or the Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including (A) the principal component of payments in respect of Financing Leases, (B) the amount of any scheduled repayment of Term Loans pursuant to Section 2.07, and (C) any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but excluding (X) all other voluntary and mandatory prepayments of Term Loans and all prepayments and repayments of Revolving Credit Loans and Swing Line Loans and (Y) all prepayments in respect of any other revolving credit facility, except in the case of clause (Y) to the extent there is an equivalent permanent reduction in commitments thereunder to the extent financed with internally generated cash), (6) cash payments by the Borrower and the Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, to the extent financed with internally generated cash, (7) the amount of Investments and acquisitions made (or committed to be made) by the Borrower and the Restricted Subsidiaries during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in cash pursuant to Section 7.02 (other than Section 7.02(a), (c) or (x)), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (8) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (9) the aggregate amount of expenditures made (or committed to be made) by the Borrower and its Restricted Subsidiaries in cash during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such expenditures are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period, to the extent financed with internally generated cash, (10) the aggregate amount of any premium, make-whole or penalty payments paid (or committed to be paid) in cash by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such premium, make-whole or penalty payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) that are required to be made in connection with any prepayment of Indebtedness, to the extent financed with internally generated cash, (11) the amount of cash taxes paid (or committed to be paid) in such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such taxes are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period and (12) (x) the aggregate consideration required to be paid in cash by the Borrower and its Restricted Subsidiaries pursuant to binding contracts, commitments, letters of intent or purchase orders (the “Contract Consideration”) entered into prior to or during such period and (y) the aggregate amount of cash that is reasonably expected to be expended in respect of any planned cash expenditures by the Borrower or any of the Restricted Subsidiaries in the case of each of clauses (x) and (y), relating to acquisitions or other Investments or Capital Expenditures or acquisitions of IP Rights to the extent expected to be consummated or made, in each case during the period of eight consecutive fiscal quarters of the Borrower following the end of such period (or if committed to be made during such eight consecutive fiscal quarter period, during the period of two consecutive fiscal quarters of the Borrower following the end of such eight fiscal-quarter period); provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such acquisition or other Investment, Capital Expenditures or acquisitions of IP Rights during such period of eight consecutive fiscal quarters is less than the Contract Consideration (or if committed to during such eight consecutive fiscal quarter period, two consecutive fiscal quarters of the Borrower following the end of such eight fiscal-quarter period), the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of eight consecutive fiscal quarters (or if committed to during such eight consecutive fiscal quarter period, two consecutive fiscal quarters of the Borrower following the end of such eight fiscal-quarter period), in the case of each of the immediately preceding clauses (1) through (12), without duplication of any deduction from Excess Cash Flow in any prior period; provided that any such amounts described in the foregoing clauses (1) through (12) that have not been applied to reduce the prepayments which may be due from time to time pursuant to this Section 2.05(b)(i) shall be carried over to subsequent fiscal years, and may reduce the prepayments due from time to time pursuant to this Section 2.05(b)(i) during such fiscal years, until such time as such amounts have been used to reduce such prepayments which may be due from time to time minus (C) an amount equal to the greater of (x) $600,000,000 and (y) beginning with the first day of the fiscal quarter ending June 25, 2022, an amount equal to 25% of LTM Consolidated EBITDA at the time of such prepayment; provided further that, for the avoidance of doubt, only amounts in excess of the greater of (x) $600,000,000 and (y) beginning with the first day of the fiscal quarter ending June 25, 2022, an amount equal to 25% of LTM Consolidated EBITDA (at the election of the Borrower, with unused amounts described in this clause (C) carried forward to the next succeeding fiscal year and; provided that in the event that a prepayment is due in respect of a fiscal year pursuant to this Section 2.05(b)(i), the Borrower my elect, in its sole discretion, to use amounts pursuant to this clause (C) that would otherwise be available for the next succeeding fiscal year, which usage shall reduce such amounts available to the Borrower in such next succeeding fiscal year).
(ii) If (1) the Borrower or any Restricted Subsidiary Disposes of any property or assets constituting Collateral (excluding any ABL Priority Collateral, if applicable) pursuant to Sections 7.05 (j) or (aa), which results in the realization or receipt by the Borrower or Restricted Subsidiary of Net Proceeds, the Borrower shall cause to be offered to be prepaid in accordance with clauses (b)(vi) and (ix) below, on or prior to the date which is thirty (30) Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of such Net Proceeds, subject to clause (b)(xi) below, an aggregate principal amount of Term Loans in an amount equal to the Applicable Asset Sale Percentage of all Net Proceeds received (such amount, the “Excess Cash Flow AmountApplicable Proceeds”); provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g), the Senior Secured Notes, Indebtedness incurred pursuant to the ABL Credit Agreement, or any other Indebtedness outstanding at such time that, in each case, is secured by a Lien on the Collateral pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds of such Disposition (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply the Applicable Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time) and the remaining Net Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided further that (A) the portion of the Applicable Proceeds (but not the other Net Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof.
(viii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(vi) below an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five Business Days after the receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Applicable Indebtedness with the Net Proceeds of such Indebtedness, then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided further that (A) the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(iii) shall be reduced accordingly and (viiB) belowto the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof. If the Borrower or any other Loan Party incurs any Credit Agreement Refinancing Indebtedness, the Net Proceeds of such Credit Agreement Refinancing Indebtedness shall be used pursuant to clause (iv) of the definition thereof.
(iv) If for any reason the aggregate Revolving Credit Exposures at any time exceeds the aggregate Revolving Credit Commitments then in effect (including, for the avoidance of doub
Appears in 4 contracts
Sources: Credit Agreement (Medline Inc.), Credit Agreement (Medline Inc.), Credit Agreement (Medline Inc.)
Mandatory. (i) Upon Within the incurrence later of five (5) Business Days after the financial statements have been delivered pursuant to Section 6.01(a) for each fiscal year and ninety (90) days after the end of such fiscal year (commencing with the fiscal year ending December 31, 2017), the Borrowers shall, subject to clauses (b)(vi) and (b)(vii) of this Section 2.05, cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus (B) the sum of (1) all voluntary prepayments of Term Loans pursuant to Section 2.05(a)(v), in an amount equal to the discounted amount actually paid in respect of the principal amount of such Term Loans, during such fiscal year or issuance after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all other voluntary prepayments of Term Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due and (3) all voluntary prepayments of Revolving Credit Loans and loans under any other revolving credit facility secured by the Collateral in whole or in part on a pari passu basis (but without regard to control of remedies) with the Revolving Credit Facilities during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments or such other revolving commitments, as applicable, are permanently reduced by the amount of such payments and, in the case of each of the immediately preceding clauses (1), (2) and (3), to the extent such prepayments are not funded with the proceeds of long-term Indebtedness (other than revolving Indebtedness); provided, however, that a prepayment of Term Loans pursuant to this Section 2.05(b)(i) shall only be required in the amount (if any) by which the ECF Payment Amount for such fiscal year exceeds $30,000,000.
(ii) (A) If (1) the Parent Borrower or any of its Restricted Subsidiaries Disposes of any Indebtedness property or assets (other than Indebtedness expressly any Disposition of any property or assets permitted by Sections 7.05(a), (b), (c), (d), (e), (g), (h), (i), (k), (l), (m), (n), (o), (p), (q), (r) and (s)) or (2) any Casualty Event occurs, which results in the realization or receipt by the Parent Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrowers shall cause to be incurred prepaid on or issued pursuant prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Parent Borrower or such Restricted Subsidiary of such Net Cash Proceeds, subject to clauses (b)(vi) and (b)(vii) of this Section 7.03 (except Credit Agreement Refinancing Indebtedness))2.05, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00% the Applicable Disposition Percentage of such Net Cash Proceeds received; provided that if at the time that any such prepayment would be required, the Borrowers (or any Restricted Subsidiary) are required to offer to repurchase any Indebtedness secured on a pari passu basis (but without regard to control of remedies) with the Obligations (other than any Indebtedness of the gross cash type described in clause (a)(ii)(A) of the definition of “Net Cash Proceeds” that was required to be prepaid or repaid and that resulted in a reduction in the applicable Net Cash Proceeds) pursuant to the terms of the documentation governing such Indebtedness with the net proceeds received by of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower Borrowers (or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, ) may apply such Net Cash Proceeds on a pro rata basis (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In determined on the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with basis of the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans aggregate outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) and Other Applicable Indebtedness at such time; provided that the ECF Percentage portion of such Consolidated Excess Cash Flow for net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Fiscal Year less (Bnet proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) all voluntary prepayments to the prepayment of the Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other and to the repurchase or prepayment of Other Applicable Indebtedness, in each caseand the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly; provided, secured on a pari passu basis with the Liens securing the Obligations hereunderfurther, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, that to the extent accompanied by a permanent reduction in the relevant commitmentholders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower any event within ten (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions10) and, in the case of all such prepayments made Business Days after the end date of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent periodrejection) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof; provided, further, that no prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrowers (vor such Restricted Subsidiary) and shall have reinvested (viior entered into a binding commitment to reinvest) below.in accordance with Section 2.05(b)(ii)(B); and
Appears in 4 contracts
Sources: Credit Agreement (Iqvia Holdings Inc.), Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Quintiles IMS Holdings, Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within five (other than Indebtedness expressly permitted to be incurred or issued 5) Business Days after financial statements have been delivered pursuant to Section 7.03 6.01(a) (except Credit Agreement Refinancing Indebtedness)commencing with the fiscal year ending March 31, 2018) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower Borrowers shall prepay cause to be offered to be prepaid in accordance with clause (or Cash Collateralizeb)(vi), as applicable(ix) and (xi) below, an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00% of (the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90“ECF Payment Amount”) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such Consolidated financial statements minus (B) the sum of (1) all voluntary prepayments, repurchases or redemptions of Revolving Credit Loans made during such fiscal year or after year-end and prior to when such Excess Cash Flow for prepayment is due to the extent (x) financed with internally generated cash or the proceeds of any Revolving Credit Loans or any other revolving credit loans and (y) the Revolving Credit Commitments are permanently reduced by the amount of such Fiscal Year less payments, (B2) all voluntary prepayments prepayments, repurchases or redemptions of Term LoansLoans (including, loans under in the case of Term Loans (x) prepaid pursuant to Section 2.05(a)(v), the actual purchase price paid in cash or (y) purchased pursuant to open-market purchasers in accordance with Section 10.07(m), the actual purchase price paid in cash pursuant to such purchase) made during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent financed with internally generated cash or the proceeds of any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under or any other Indebtednessrevolving credit loans, in each case(3) all voluntary prepayments, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, repurchases or redemptions of Additional First Lien Indebtedness made during such Fiscal Year fiscal year or after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due (in the case of any revolving credit loans, to the extent that revolving credit commitments are permanently reduced by the amount of such payments) to the extent financed with internally generated cash or the proceeds of any Revolving Credit Loans or any other revolving Indebtedness prepaidcredit loans, (4) the amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash or accrued during such period, or, at the option of the Parent Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period), to the extent accompanied by financed with internally generated cash or the proceeds of any Revolving Credit Loans or any other revolving credit loans, (5) the aggregate amount of all principal payments of Indebtedness of the Parent Borrower or the Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Parent Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a permanent reduction subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including (A) the relevant commitmentprincipal component of payments in respect of Capitalized Leases, (B) the amount of any scheduled repayment of Term Loans pursuant to Section 2.07, and (C) any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to the extent required due to a Disposition or Casualty Event that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but excluding (X) all other voluntary and mandatory prepayments of Term Loans and all prepayments and repayments of Revolving Credit Loans and Swing Line Loans and (Y) all prepayments in respect of any other revolving credit facility, except in the case of all clause (Y) to the extent there is an equivalent permanent reduction in commitments thereunder), to the extent financed with internally generated cash or the proceeds of any Revolving Credit Loans or any other revolving credit loans, (6) cash payments by the Parent Borrower and the Restricted Subsidiaries made (or committed to be made) during such prepaymentsperiod or, at the option of the Parent Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Parent Borrower and the Restricted Subsidiaries other than Indebtedness to the extent financed with internally generated cash or the proceeds of any Revolving Credit Loans or any other revolving credit loans, (7) the amount of Investments and acquisitions made (or committed to be made) by the Parent Borrower and the Restricted Subsidiaries during such period or, at the option of the Parent Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in cash pursuant to any Permitted Investment (other than clauses (b) or (y) of the definition of “Permitted Investments”) or Investment permitted under 7.06, in each case, to the extent that such prepayments are Investments and acquisitions were financed with internally generated cash of the Borrower (and not from or the proceeds of Indebtedness Revolving Credit Loans or any other revolving credit loans, (8) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Parent Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) pursuant to Section 7.06(g), (h)(x), (i), (l)(i) or (k) to the extent such Restricted Payments were financed with internally generated cash or the sale proceeds of Revolving Credit Loans or issuance any other revolving credit loans, (9) the aggregate amount of Equity Interests expenditures made (or equity contributionscommitted to be made) andby the Parent Borrower and the Restricted Subsidiaries in cash during such period or, at the option of the Parent Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such expenditures are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period and were financed using internally generated cash or the proceeds of any Revolving Credit Loans or any other revolving credit loans, (10) the aggregate amount of any premium, make-whole or penalty payments paid (or committed to be paid) in cash by the Parent Borrower and the Restricted Subsidiaries during such period or, at the option of the Parent Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such premium, make-whole or penalty payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) that are required to be made in connection with any prepayment of Indebtedness, to the extent financed using internally generated cash or the proceeds of any Revolving Credit Loans or any other revolving credit loans, (11) the amount of cash taxes (including for this purpose any distributions under Section 7.06(i)(ii)) paid (or committed to be paid) in such period or, at the option of the Parent Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such taxes are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period, and (12) the amount of Excluded Contract Amounts paid (or committed to be paid) in cash by the Parent Borrower and the Restricted Subsidiaries during such period or, at the option of the Parent Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Excluded Contract Amounts are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period), in the case of all such each of the immediately preceding clauses (1) through (12), without duplication of any deduction from Excess Cash Flow in any prior period; provided that prepayments made after shall only be required under this Section 2.05(b)(i) if the end ECF Payment Amount for the relevant fiscal year equals an amount that is greater than $50,000,000.
(ii) If (x) the Parent Borrower or any Restricted Subsidiary Disposes of such Fiscal Year any property or assets pursuant to Section 7.05(j), or (y) any Casualty Event occurs, which results in the realization or receipt by the Parent Borrower or Restricted Subsidiary of Net Proceeds, the Parent Borrower shall cause to be offered to be prepaid in accordance with clause (b)(vi), (ix) and (xi) below, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Parent Borrower or any Restricted Subsidiary of such Consolidated Net Proceeds, an aggregate principal amount of Term Loans in an amount equal to the 100% of all such Net Proceeds received.
(iii) [Reserved].
(iv) If the Parent Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03 (excluding Section 7.03(t)), the Borrowers shall cause to be offered to be prepaid in accordance with clauses (b)(vi) and (b)(ix) below an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Parent Borrower or such Restricted Subsidiary of such Net Proceeds.
(v) If for any reason the aggregate Revolving Credit Exposures at any time exceeds the aggregate Revolving Credit Commitments then in effect (including, for the avoidance of doubt, as a result of the termination of any Class of Revolving Credit Commitments on the Maturity Date with respect thereto), the Borrowers shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(v) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(vi) Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, Revolver Extension Request or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied to any Class of Term Loans then outstanding as directed by the Parent Borrower (on behalf of the applicable Borrowers) (provided that such prepayments may not be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that (I) any Class of Incremental Term Loans, Refinancing Term Loans or Extended Term Loans may specify that one or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier maturing Term Loans and (II) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt)); (B) with respect to the applicable Class of Term Loans, each prepayment pursuant to clauses (i) through (iv) of this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.07(a) as directed by the Parent Borrower (on behalf of the applicable Borrowers) (and absent such direction, in direct order of maturity); and (C) each such prepayment shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Shares of such prepayment. If at the time that any prepayment pursuant to Section 2.05(b)(i) or (ii) would be required, a Loan Party is required to prepay, redeem or repurchase or offer to prepay, redeem or purchase any Additional First Lien Indebtedness pursuant to the terms of the documentation governing such Additional First Lien Indebtedness with amounts described in Section 2.05(b)(i) or (ii), then the Borrowers may apply such prepayments described in Section 2.05(b)(i) or (ii) on a pro rata basis to the Term Loans and such Additional First Lien Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans and each such Additional First Lien Indebtedness at such time); provided, that the portion of Excess Cash Flow or Net Proceeds otherwise required to make a prepayment hereunder in accordance with Section 2.05(b)(i) or (ii), as applicable, allocated to such Additional First Lien Indebtedness shall not exceed the amount of Excess Cash Flow or Net Proceeds required to be allocated to such Additional First Lien Indebtedness pursuant to the terms thereof, and to the extent the required prepayment of such Additional First Lien Indebtedness is dueless than pro rata with respect to the Term Loans, any remaining amount shall be allocated to the prepayment of Term Loans in accordance with the terms hereof; provided, further, if the holder of any Additional First Lien Indebtedness declines such prepayment, redemption or purchase of such Additional First Lien Indebtedness owed to it, then the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with, and to the extent required by, the terms hereof.
(vii) The Parent Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iv) of this Section 2.05(b) at least four (4) Business Days prior to the date of such prepayment (provided that that, in the case of clause (ii) or (iv) of this Section 2.05(b), the Parent Borrower may rescind (or delay the date of prepayment identified in) such amount so deducted notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be deducted consummated or shall otherwise be delayed). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. Such notice may also specify a portion of such prepayment to come from more than one Borrower so long as, in the Excess Cash Flow Amount aggregate, all such separate amounts together equal the full amount of such required prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Parent Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
(viii) All prepayments under this Section 2.05 shall be made together with, in the case of any subsequent period) (such amountprepayment of a Eurocurrency Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section 3.05. Notwithstanding any of the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below.other provision
Appears in 4 contracts
Sources: Credit Agreement (PF2 SpinCo, Inc.), Credit Agreement (PF2 SpinCo LLC), Credit Agreement (Change Healthcare Inc.)
Mandatory. (i) Within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrowers shall prepay an aggregate principal amount of Term Loans in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for the fiscal year covered by such financial statements commencing with the fiscal year ending on or about January 3, 2016, minus (B) the sum of (1) the aggregate amount of voluntary principal prepayments of the Loans (except prepayments of (x) Swing Line Loans and (y) Loans under any Revolving Tranche that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches and Loans repurchased pursuant to Dutch Auctions or open market purchases in an amount equal to the discounted purchase price of such Loans paid in respect of such Loans pursuant to such Dutch Auctions or through open market purchases), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness and (2) any amount not required to be applied pursuant to Section 2.05(b)(viii); provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was less than 3.00:1.00 or 2.50:1.00, respectively.
(ii) If (x) the Lux Borrower or any Restricted Subsidiary consummates an Asset Sale, or (y) any Casualty Event occurs, and any transaction or series of related transactions described in the foregoing clauses (x) and (y) results in the receipt by the Lux Borrower or such Restricted Subsidiary of aggregate Net Cash Proceeds in excess of $10,000,000 for any Asset Sale or Casualty Event or $25,000,000 in any fiscal year (any such transaction or series of related transactions resulting in Net Cash Proceeds being a “Relevant Transaction”), (1) the Borrower Representative (on behalf of the Borrowers) shall give written notice to the Administrative Agent thereof promptly after the date of receipt of such Net Cash Proceeds and (2) except to the extent the Borrowers elect in such notice to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrowers shall prepay, subject to Section 2.05(b)(viii) an aggregate principal amount of Term Loans in an amount equal to 100% (as may be adjusted pursuant to the second proviso below) of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof by the Lux Borrower or such Restricted Subsidiary; provided that the Borrowers may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness that is secured by the Collateral on a first lien “equal and ratable” basis with Liens securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I).
(iii) (@) Upon the incurrence or issuance by the Lux Borrower or any of its Restricted Subsidiaries Subsidiary of any Refinancing Notes, any Specified Refinancing Term Loans or any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.01, the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans Loan Tranches in an amount equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Lux Borrower or such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowRestricted Subsidiary.
Appears in 4 contracts
Sources: Fifth Amendment (Ortho Clinical Diagnostics Holdings PLC), Credit Agreement (Ortho Clinical Diagnostics Holdings PLC), Amendment (Ortho Clinical Diagnostics Holdings PLC)
Mandatory. (i) Upon Unless the incurrence Required Lenders otherwise agree, within ten (10) Business Days after financial statements have been (or, if later, are required to be) delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall, subject to clause (b)(vii) of this Section 2.05, prepay an aggregate principal amount of Term Loans in an amount (the “ECF Payment Amount”) equal to (A) the Applicable ECF Prepayment Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements (commencing with the fiscal year ending on December 31, 2022) minus (B) the sum of (x) all voluntary prepayments and cancellations of Term Loans, Refinancing Equivalent Debt and Incremental Equivalent Debt during such fiscal year (to the extent not deducted pursuant to this clause (B) in respect of the prior year) or issuance after such fiscal year end and prior to the time the payment pursuant to this Section 2.05(b)(i) is due (including the amount of any voluntary prepayments, repurchases or cancellations of Term Loans, Refinancing Equivalent Debt and Incremental Equivalent Debt (other than under a revolving facility) made at a discount to par (in an amount equal to the discounted amount actually paid in respect of the principal amount of such Indebtedness)), (y) all voluntary prepayments of Revolving Credit Loans (or other revolving loans constituting Refinancing Equivalent Debt and Incremental Equivalent Debt that are secured on a pari passu basis with the Revolving Credit Loans) during such fiscal year (to the extent not deducted pursuant this clause (B) in respect of the prior year) or after such fiscal year end and prior to the time the payment pursuant to this Section 2.05(b) is due and (z) all voluntary prepayments of Revolving Credit Loans made to account for any arrangement fees payable pursuant to the CoBank Fee Letter, in each case to the extent the Revolving Credit Commitments or such other revolving credit facility commitments are permanently reduced by the amount of such payments, and in the case of each of the immediately preceding clauses (x), (y) and (z), to the extent such prepayments are not financed with the proceeds of other long term Indebtedness (other than revolving or intercompany Indebtedness); provided that to the extent any prepayments described in this clause (B) are made at a discount to par pursuant to any purchases or assignments of the Loans pursuant to Section 2.05(a)(v) or Section 10.07(h) or (m) or otherwise, only the purchase price (and not the par amount) of the applicable Loans or other Indebtedness subject to such purchase or assignment will be deducted from the ECF Payment Amount pursuant to this clause (B); minus (C) without duplication of amounts deducted pursuant to clause (G) below, the amount of Capital Expenditures, Capitalized Software Expenditures or acquisitions of intellectual property made in cash during such period by the Borrower or its Restricted Subsidiaries to the extent not financed with long term Indebtedness (other than revolving or intercompany Indebtedness), in each case, of the Borrower and its Restricted Subsidiaries; minus (D) without duplication of amounts deducted pursuant to clauses (E) and (G) below, the amount of Investments made pursuant to Sections 7.02(b), (f) (other than Investments in the Borrower or any of its Restricted Subsidiaries, to the extent made in reliance on clause (ii) thereof (or any modification, replacement, renewal, reinvestment or extension thereof in accordance with clause (iii) thereof), (i), (m), (n), (s) (other than to the extent funded with Investments pursuant to Section 7.02(n) to the extent the amount of such Investments under Section 7.02(n) were already deducted under this clause (vii)), (u) (other than Investments in Restricted Subsidiaries), (v) (other than Investments in Restricted Subsidiaries), (aa) (other than Investments in Restricted Subsidiaries) and (ff), and the amount of acquisitions made during such period to the extent that such Investments and acquisitions were not financed with the proceeds of other long term Indebtedness (other than revolving or intercompany Indebtedness) of the Borrower or its Restricted Subsidiaries; minus (E) the amount of Restricted Payments paid during such period pursuant to Sections 7.06(c), (f), (g), (h), (i) (to the extent of any cash expenditures), (j), (k), (l) (to the extent included in Consolidated Net Income), (n), (o) (to the extent included in Consolidated Net Income), (p) (to the extent the making of such Restricted Payment pursuant to such other clause of Section 7.06 is permitted to be applied against the prepayment under this Section 2.05(b)(i) on a dollar for dollar basis), (r), (s), (t), (u), (v) and, to the extent of any cash expenditures, (x); minus (F) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and its Restricted Subsidiaries during such period that are made in connection with any payment of Indebtedness to the extent such amounts are not expensed during such period or are not deducted in calculating Consolidated Net Income and such payments of Indebtedness reduced Excess Cash Flow pursuant to clause (b)(iii) of the definition of Excess Cash Flow or reduced the mandatory prepayment required by this Section 2.05(b)(i) above; minus (G) without duplication of amounts deducted from Excess Cash Flow, at the option of the Borrower, the aggregate consideration required to be paid in cash by Holdings, the Borrower or any of its Restricted Subsidiaries of any Indebtedness pursuant to binding contracts (other than Indebtedness expressly permitted the “Contract Consideration”) entered into prior to or during such period or otherwise budgeted to be incurred paid in cash, in either case, relating to tax expenses, interest payments, Restricted Payments, Investments, Permitted Acquisitions, Capital Expenditures, Capitalized Software Expenditures or issued other acquisitions and made during such period or after such period and prior to the time the payment pursuant to this Section 7.03 2.05(b)(i) is due or projected by the Borrower to be consummated or made during the period of eighteen (except Credit Agreement Refinancing Indebtedness18) consecutive fiscal months of the Borrower following the end of such period; provided that, to the extent the aggregate amount of cash actually utilized to finance such tax expenses, interest payments, Restricted Payments, Investments, Permitted Acquisitions, Capital Expenditures, Capitalized Software Expenditures or other acquisitions during such period of eighteen (18) consecutive fiscal months is less than the Contract Consideration or amount otherwise budgeted for, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of eighteen (18) consecutive fiscal months; provided, further, that prepayments pursuant to this Section 2.05(b)(i) shall only be required to the extent the ECF Payment Amount exceeds $5,000,000 (and then only amounts in excess of such $5,000,000 shall be required to be paid).
(ii) (A) Subject to clauses (b)(ii)(B), the Borrower shall prepay (or Cash Collateralizeb)(iii) and (b)(vii) of this Section 2.05, as applicableif (x) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from Disposes outside of the ordinary course of business of any such Indebtedness less all reasonable and customary out-of-pocket legalproperty or assets pursuant to Section 7.05(j) or (y) any Casualty Event occurs, underwriting and other fees, costs and expenses incurred which results in the realization or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Subsidiary of Net Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal YearProceeds, the Borrower shall, no later than one-hundred-twenty-five shall prepay on or prior to the date which is ten (12510) days Business Days after the end date of the realization or receipt of such Fiscal YearNet Cash Proceeds, prepay an aggregate principal amount of Term Loans equal to the Applicable Asset Sale Prepayment Percentage of all Net Cash Proceeds realized or received; provided that if at the time that any such prepayment would be required, the Borrower or any Restricted Subsidiary is required to repay, redeem or repurchase or offer to repay, redeem or repurchase any Indebtedness that is secured on a pari passu basis (but without regard to control of remedies) with the Obligations pursuant to the terms of the documentation governing or evidencing such Indebtedness with the net proceeds of such Disposition or Casualty Event (such Indebtedness required to be repaid, redeemed or repurchased or offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower or applicable Restricted Subsidiary may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans equal to (A) and Other Applicable Indebtedness at such time; provided that the ECF Percentage portion of such Consolidated Excess Net Cash Flow for Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Fiscal Year less (BNet Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) all voluntary prepayments to the prepayment of the Term LoansLoans and to the repurchase, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other redemption or prepayment of Other Applicable Indebtedness, in each caseand the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly; provided, secured on a pari passu basis with the Liens securing the Obligations hereunderfurther, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, that to the extent accompanied the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, redeemed or prepaid, the declined amount shall be retained by a permanent reduction in the relevant commitment, Borrower and/or its applicable Restricted Subsidiaries and in the case of all such prepayments, may be applied to any purpose not prohibited pursuant to the extent terms hereof; provided, further, that no prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such prepayments are financed with internally generated cash portion of such Net Cash Proceeds that the Borrower (and not from the proceeds of Indebtedness reinvests or the sale or issuance of Equity Interests or equity contributionsintends to reinvest in accordance with Section 2.05(b)(ii)(B) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied except as set forth in clauses (v) and (vii) belowexpressly required therein.
Appears in 4 contracts
Sources: Credit Agreement (Cincinnati Bell Inc), Credit Agreement (Cincinnati Bell Inc), Credit Agreement (Cincinnati Bell Inc)
Mandatory. (i) Upon Within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing in respect of the incurrence financial statements required to have been delivered pursuant to Section 6.01(a) for the fiscal year ending December 31, 2018) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus, without duplication of any amount deducted from Consolidated Net Income in calculating Excess Cash Flow for such period, (B) the sum of (1) all voluntary prepayments of Term Loans made during such fiscal year pursuant to Section 2.05(a)(vi), in an amount equal to the discounted amount actually paid in cash in respect of the principal amount of such Term Loans during such fiscal year or issuance after year-end and prior to when such Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to (x) Section 2.05(a)(v), the actual purchase price paid in cash pursuant to a “Dutch Auction” and (y) open-market purchases pursuant to Section 10.07(l), the actual purchase price paid in cash pursuant to such purchase), (2) all other voluntary prepayments of Term Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent reducing scheduled repayments of principal in subsequent fiscal years, (3) all voluntary prepayments of Revolving Credit Loans, Extended Revolving Credit Loans, Refinancing Revolving Credit Loans and Incremental Revolving Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments, Extended Revolving Credit Commitments, Refinancing Revolving Credit Commitments, Revolving Commitment Increase and/or New Revolving Credit Commitments, as the case may be, are permanently reduced by the amount of such payments, (4) the amount equal to all payments in cash actually paid by the Borrower in connection with the buyback of Loans pursuant to Section 10.07(l) during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, in the case of each of the immediately preceding clauses (1), (2), (3) and (4), to the extent such prepayments are funded with Internally Generated Cash; provided that, to the extent any deduction is made pursuant to the foregoing clauses (1), (2), (3) and (4) after year-end and prior to when such Excess Cash Flow prepayment is due, such prepayment shall not be deducted with respect to the Excess Cash Flow prepayment for the succeeding fiscal year; provided further that the Consolidated First Lien Net Leverage Ratio in the definition of “Applicable ECF Percentage” shall be recalculated to give pro forma effect to any amount referred to in clause (B) above that is paid or otherwise realized or accounted for after the end of the applicable fiscal year but prior to the making of the Excess Cash Flow payment required for such fiscal year. Prepayments pursuant to this Section 2.05(b)(i) shall only be required for any fiscal year if the amount of the Excess Cash Flow for such fiscal year is greater than $15,000,000; provided, further, that, for the avoidance of doubt, only amounts in excess of such $15,000,000 shall be prepaid pursuant to this Section 2.05(b)(i).
(ii) If (1) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets (other than any Disposition of any property or assets permitted by ▇▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) (except as set forth in the proviso thereof or to the extent such property is subject to a Mortgage), (n), (p), (q), (r) and (s)), or (2) any Casualty Event occurs, which results in the realization or receipt by the Borrower or a Restricted Subsidiary of Net Proceeds, subject to Section 2.05(b)(vi), the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of its Restricted Subsidiaries such Net Proceeds, an aggregate principal amount of Term Loans in an amount equal to 100% of all such Net Proceeds; provided, further, that if at the time that any such prepayment would be required, the Borrower is required to offer to prepay or repurchase Permitted First Priority Refinancing Debt, Incremental Equivalent Debt or Indebtedness incurred pursuant to Section 7.03(v)(i) that, in each case, is secured by a Lien on the Collateral on a pari passu basis with the Obligations, or any Permitted Refinancing of any such Indebtedness, in each case pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Disposition or Casualty Event (other than such Permitted First Priority Refinancing Debt, Incremental Equivalent Debt or Indebtedness expressly incurred pursuant to Section 7.03(v)(i) that, in each case, is secured by a Lien on the Collateral on a pari passu basis with the Obligations (or the Permitted Refinancing of any such Indebtedness) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within five Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) If Holdings or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (A) not permitted to be incurred or issued pursuant to Section 7.03 or (except B) that is intended to constitute Credit Agreement Refinancing Indebtedness))Indebtedness in respect of any Class of Term Loans, the Borrower shall prepay (or Cash Collateralize, as applicable) cause to be prepaid an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00100% of all Net Proceeds received therefrom on or prior to the gross date which is three Business Days after the receipt by Holdings or such Restricted Subsidiary of such Net Proceeds.
(iv) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans and L/C Obligations at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall promptly prepay, or cause to be promptly prepaid, Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(v) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any Excess Cash Flow attributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable material constituent documents, an amount equal to the portion of such Foreign Subsidiary Excess Cash Flow that would be so affected were the Borrower to attempt to repatriate such cash proceeds will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 so long, but only so long, as the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation, even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Foreign Subsidiary Excess Cash Flow will otherwise be subject to repayment under this Section 2.05), 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 Foreign Subsidiary Excess Cash Flow is permissible under the applicable local law or applicable material constituent documents (even if such cash is actually not repatriated), an amount equal to the amount of the Foreign Subsidiary Excess Cash Flow that could be repatriated will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of an amount equal to the additional taxes of the Borrower, its Subsidiaries and the direct and indirect holders of Equity Interests in the Borrower that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences for itself or any of its Subsidiaries, an amount equal to such Foreign Subsidiary Excess Cash Flow that would be so affected will not be subject to repayment under this Section 2.05; provided that, on or before the date on which any such Foreign Subsidiary Excess Cash Flow so retained would otherwise have been required to be applied to prepayments pursuant to this Section 2.05, the Borrower apply an amount equal to such Foreign Subsidiary Excess Cash Flow to such prepayments as if such Foreign Subsidiary Excess Cash Flow had been received by the Borrower or any of its Restricted Subsidiaries from any rather than such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Foreign Subsidiary, less the amount of additional Taxes that would have been payable or reserved against if such Foreign Subsidiary Excess Cash Flow had been repatriated (or, if less, the Foreign Subsidiary Excess Cash Flow that would be calculated if received by such prepayments (or Cash Collateralization) to be applied as set forth Foreign Subsidiary); provided, further, that in the case of each of clauses (vi) and (vii) belowii).
, such nonpayment prior to the time such amounts must be repatriated shall not constitute a Default or Event of Default (ii) In the event that (a) there and such amounts shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to available (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less first, to repay local foreign indebtedness, if any, and (B) all voluntary prepayments thereafter, for working capital purposes of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtednessthe Borrower and its Restricted Subsidiaries, in each case, secured subject to the prepayment provisions in this Section 2.05(b)(v)); provided, further, that (A) for purposes of this Section 2.05, Excess Cash Flow shall be deemed allocable to each Foreign Subsidiary, with respect to any period, in an amount equal to (i) the Consolidated EBITDA of such Foreign Subsidiary for such period, divided by (ii) the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period (it being understood and agreed for the avoidance of doubt that such allocation shall exclude any reduction from interest and principal payments in respect of the Obligations) and (B) the Borrower and its Restricted Subsidiaries shall be entitled to reduce Excess Cash Flow owed pursuant to Section 2.05(b)(i) in respect of any Excess Cash Flow Period by the aggregate amount of Excess Cash Flow attributable to Foreign Subsidiaries subject to the limitations and restrictions described above in this Section 2.05(b)(v) for such Excess Cash Flow Period.
(vi) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any or all of the Net Proceeds of any Disposition by a Foreign Subsidiary (“Foreign Disposition”) or the Net Proceeds of any Casualty Event incurred by a Foreign Subsidiary (“Foreign Casualty Event”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable material constituent documents, an amount equal to the Net Proceeds that would be so affected were the Borrower to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 so long, but only so long, as the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Net Proceeds will otherwise be subject to repayment under this Section 2.05), 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 Proceeds is permissible under the applicable local law or applicable material constituent documents, even if such cash is not actually repatriated at such time, an amount equal to the amount of the Net Proceeds will be promptly (and in any event not later than five Business Days) applied (net of an amount equal to the additional taxes of the Borrower, its Subsidiaries and the direct and indirect holders of Equity Interests in the Borrower that would be payable or reserved against and any additional costs that would be incurred as a pari passu basis result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition or Foreign Casualty Event would have material adverse tax cost consequences with respect to such Net Proceeds, an amount equal to such Net Proceeds that would be so affected will not be subject to repayment under this Section 2.05; provided that, on or before the Liens securing date on which any such Net Proceeds so retained would otherwise have been required to be applied to prepayments pursuant to this Section 2.05, the Obligations hereunderBorrower apply an amount equal to such Net Proceeds to such prepayments as if such Net Proceeds had been received by the Borrower rather than such Foreign Subsidiary (or the applicable recipient), less the amount of additional Taxes that would have been payable or reserved against if such Net Proceeds had been repatriated (or, if less, the Net Proceeds that would be calculated if received by such Foreign Subsidiary (or the applicable recipient)); provided, further, that in the case of each of clauses (i) and (ii), nonpayment prior to the time such amounts must be repatriated shall not constitute a Default or Event of Default (and such amounts shall be available (A) first, to repay local foreign indebtedness, if any, and (B) thereafter, for working capital purposes of the Borrower and its Restricted Subsidiaries, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior subject to the date prepayment provisions in this Section 2.05(b)(vi)). For the avoidance of doubt, nothing in this Section 2.05 shall require the Borrower to cause any amounts to be repatriated to the United States (whether or not such Consolidated Excess Cash Flow prepayment is due (amounts are used in or excluded from the case determination of the amount of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such mandatory prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and hereunder).
(vii) below.Except as otherwise provided in any Refinancing Amendment, Extension Amendment or any Incremental Amendment or as otherwise provided herein, (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied ratably to each Class of Term Loans then outstanding (provided that any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be a
Appears in 4 contracts
Sources: Credit Agreement (Avantor, Inc.), Credit Agreement (Avantor, Inc.), Credit Agreement (Avantor, Inc.)
Mandatory. (i) Upon Prior to the Debt Assumption Date, the Borrower shall be under no obligation to prepay the Loans, except as provided in Section 2.05(c).
(ii) On or after the Debt Assumption Date, upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of of:
(A) any Indebtedness (other than Indebtedness expressly permitted to be Takeout Debt issued or incurred or issued pursuant to Section 7.03 a Bridge Takeout Notice; or
(except Credit Agreement Refinancing Indebtedness))B) any equity or equity-linked securities in any direct or indirect public offering or private placement, but excluding issuance pursuant to employee stock plans, in each case, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations the Loans equal to 100.00100% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less Takeout Debt or equity or equity-linked securities less, in each case, all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) 90 days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (viiSection 2.05(b)(iv) below).
(iiiii) In On or after the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal YearDebt Assumption Date, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, shall prepay an aggregate principal amount of the Term Loans equal to (A) 100% of the ECF Percentage amount of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured Proceeds on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow AmountProceeds Prepayment Trigger Date”) that the amount of Excess Proceeds exceeds the Excess Proceeds Threshold, within one Business Day following the Excess Proceeds Prepayment Trigger Date (such prepayments to be applied as set forth in clauses (v) and (viiSection 2.05(b)(iv) below).
(iv) Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied first to the Loans of each Lender pro rata in accordance with their Applicable Percentages, and second, any excess after the application of such proceeds in accordance with clause first may be retained by the Borrower. Notwithstanding the foregoing, any proceeds from the sale or other placement of Takeout Debt or Takeout Equity funded or purchased by a Lender or one or more of its Affiliates will be applied first to the Loans of such Lender and second, any excess after the application of such proceeds in accordance with clause first of this sentence will be applied in accordance with the immediately preceding sentence. Any prepayment of a Loan pursuant to this Section 2.05(b) shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
Appears in 3 contracts
Sources: Bridge Facility Agreement (Bellring Brands, Inc.), Bridge Facility Agreement (Post Holdings, Inc.), Bridge Facility Agreement (Post Holdings, Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within five (other than Indebtedness expressly permitted to be incurred or issued 5) Business Days after financial statements have been delivered pursuant to Section 7.03 6.01(a) (except Credit Agreement Refinancing Indebtedness)commencing with the fiscal year ending December 31, 2020) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay cause to be offered to be prepaid in accordance with clause (or Cash Collateralizeb)(ix) below, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay in an aggregate principal amount of the Term Loans equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such Consolidated financial statements minus (B) the sum of (1) all voluntary prepayments, repurchases or redemptions of Term Loans made during such fiscal year or after year-end and prior to when such Excess Cash Flow for such Fiscal Year less prepayment is made (Bincluding, in the case of Term Loans prepaid pursuant to Section 2.05(a)(v), the actual purchase price paid in cash pursuant to a “Dutch Auction”, (2) all voluntary prepayments prepayments, repurchases or redemptions of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made ABL Facility during such Fiscal Year fiscal year or after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due to the extent the commitments under the ABL Facility are permanently reduced by the amount of such payments and (3) all voluntary prepayments, repurchases or redemptions of Senior Notes and any Incremental Equivalent First Lien Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g) and any other Indebtedness (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidcredit facilities, to the extent accompanied by a permanent reduction of the corresponding commitment), in each case secured on a pari passu basis with the relevant commitmentInitial Term Loans, and in repurchased or redeemed on a pro rata basis or less than pro rata basis with the case of all such prepayments, Initial Term Loans (except to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of long-term funded Indebtedness (other than revolving loans)) during such fiscal year or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due, provided that (4) the amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash during such amount so deducted shall not be deducted from period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow Amount prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in any a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with internally generated cash or borrowings under the ABL Facility), (5) cash payments by the Borrower and its respective Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Borrower and its respective Restricted Subsidiaries other than Indebtedness, to the extent financed with internally generated cash or borrowings under the ABL Facility, (6) the amount of Investments and acquisitions made (or committed to be made) by the Borrower and its respective Restricted Subsidiaries during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in cash pursuant to Section 7.02 (other than Section 7.02(a), (c), or (x)), to the extent financed with internally generated cash or borrowings under the ABL Facility and (7) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) pursuant to Section 7.06(i) (clauses (i), (ii) or (iii) only) or Section 7.06(g), to the extent financed with internally generated cash or borrowings under the ABL Facility, in the case of each of the immediately preceding clauses (1) through (7), without duplication of any deduction from Excess Cash Flow in any prior period; provided that repayments pursuant to this Section 2.05(b)(i) shall only be required if the amount of Excess Cash Flow for such fiscal year is greater than the greater of $100,000,000 and 10% of Consolidated EBITDA (and only such excess amount shall be applied to the payment thereof).
(ii) If (x) Holdings or any of its Restricted Subsidiaries Disposes of any property or assets pursuant to Sections 7.05 (j) or (m), or (y) any Casualty Event occurs, which results in the realization or receipt by Holdings or Restricted Subsidiary of Net Proceeds, the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(ix) below, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by Holdings or any Restricted Subsidiary of such Net Proceeds, subject to clause (b)(xi) below, an aggregate principal amount of Term Loans in an amount equal to the Applicable Asset Sale Percentage of all Net Proceeds received (such amount, the “Excess Cash Flow AmountApplicable Proceeds”); provided that no such prepayment shall be required if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Senior Secured Notes or other Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Liens securing the Term Loans pursuant to the terms of the documentation governing the Senior Secured Notes or such other Indebtedness with the Net Proceeds of such Disposition or Casualty Event (such Indebtedness together with the Senior Secured Notes required to be offered to be so repurchased, “Other Applicable Indebtedness”), in which case the Borrower may apply the Applicable Proceeds (on a pro rata basis determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time) and the remaining Net Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that (A) the portion of the Applicable Proceeds (but not the other Net Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Applicable Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof.
(iii) If Holdings or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness permitted under Section 7.03 (excluding Section 7.03(t)), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(x) below an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by Holdings or such Restricted Subsidiary of such Net Proceeds.
(iv) [Reserved].
(v) [Reserved].
(vi) Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied to each Class of Term Loans (as determined by the Borrower among such Classes) then outstanding (provided that (i) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt, and (ii) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (i) through (iii) of this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment as directed by the Borrower (without premium or penalty) and, absent such direction, shall be applied in direct order of maturity to repayments thereof; and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(vii) belowThe Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iii) of this Section 2.05(b) at least four (4) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (iHeartMedia, Inc.), Credit Agreement (iHeartMedia, Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within five (other than Indebtedness expressly permitted to be incurred or issued 5) Business Days after financial statements have been delivered pursuant to Section 7.03 6.01(a) or (except Credit Agreement Refinancing Indebtednessb) (commencing with the first full fiscal quarter completed after the Closing Date) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), (the “ECF Date”), the Borrower shall prepay cause to be offered to be prepaid in accordance with clause (or Cash Collateralizeb)(vi) and (viii) below, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay in an aggregate principal amount of the Term Loans equal to (A) the ECF Applicable Cash Percentage of Excess Cash Flow, if any, for the fiscal quarter covered by such Consolidated financial statements minus (B) the sum of (1) all voluntary prepayments, repurchases or redemptions of Term Loans made during such fiscal quarter or after quarter-end and prior to when such Excess Cash Flow for such Fiscal Year less prepayment is due (Bincluding, in the case of Term Loans prepaid pursuant to Section 2.04(a)(iv), the actual purchase price paid in cash pursuant thereto) (excluding prepayments, repurchases or redemptions to the extent funded with the proceeds of long-term funded indebtedness (other than revolving loans)), (2) all voluntary prepayments prepayments, repurchases or redemptions of Term Loans, loans under the ABL Facility during such fiscal quarter or after quarter-end and prior to when such Excess Cash Flow prepayment is due to the extent accompanied by a permanent reduction of the corresponding commitment, and (3) all voluntary prepayments, repurchases or redemptions of any Secured Notes, Incremental Equivalent First Lien Debt, Revolving Credit Loans and/or loans under Agreement Refinancing Indebtedness or other IndebtednessIndebtedness (including other revolving credit facilities), in each case, secured on a pari passu basis with the Liens securing the Obligations hereunderInitial Term Loans, and, in each casethe case of any of the foregoing, made prepaid during such Fiscal Year fiscal quarter or after the quarter-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due (but, in the case of any such Revolving Credit Loans voluntary prepayments, repurchases or other redemptions in respect of any revolving Indebtedness prepaidcredit facilities, to the extent accompanied by a permanent reduction in of the relevant corresponding commitment, and in the case of all such ) (excluding prepayments, repurchases or redemptions to the extent that such prepayments are financed funded with internally generated cash of the Borrower (and not from the proceeds of long-term funded Indebtedness or the sale or issuance of Equity Interests or equity contributions) and(other than revolving credit loans)), in the case of all each of the immediately preceding clauses (1) through (3), without duplication of any deduction from Excess Cash Flow in any prior period; provided that prepayments pursuant to this Section 2.04(b)(i) shall only be required if the positive difference between clauses (A) and (B) above for such prepayments made fiscal quarter exceeds $5,000,000 (and then such prepayment shall only be required in respect of such excess amount); provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or make a payment with respect to any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Term Loans pursuant to the terms of the documentation governing such Indebtedness (or any Permitted Refinancing thereof that is secured on a pari passu basis with the Term Loans) with such Excess Cash Flow (such Indebtedness required to be offered to be so repurchased or required to be paid, “Other Applicable Indebtedness”), then the Borrower may apply such Excess Cash Flow on a pro rata basis (to the Term Loans and Other Applicable Indebtedness determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (a) the portion of such Excess Cash Flow allocated to the Other Applicable Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.04(b)(i) shall be reduced accordingly and (b) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the end date of such Fiscal Year rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(ii) If the Parent, the Borrower or any Restricted Subsidiary receives Net Proceeds from any Disposition or any Casualty Event occurs which results in the realization or receipt by the Parent, the Borrower or any Restricted Subsidiary of Net Proceeds in excess of an aggregate amount of $50,000,000 in any fiscal year, subject to the reinvestment rights specified in the definition of “Net Proceeds”, the Borrower shall offer to prepay (or cause to be offered to be prepaid) in accordance with clause (b)(vi) and (viii) below, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Parent, the Borrower or any Restricted Subsidiary of such Consolidated Excess Cash Flow prepayment is dueNet Proceeds, subject to clause (b)(ix) below, an aggregate principal amount of Term Loans in an amount equal to 100.00% of such Net Proceeds received; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or make a payment with respect to the ABL Facility or any Other Applicable Indebtedness, then the Borrower may (x) first apply such Net Proceeds to make any required prepayments under the ABL Facility and (y) then apply the remainder of such Net Proceeds on a pro rata basis to the Term Loans and Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount so deducted of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such Net Proceeds allocated to the ABL Facility and any Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be deducted from allocated to the Excess Cash Flow Amount ABL Facility and any Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this clause (b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any subsequent periodevent within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided further that no such prepayment shall be required with respect to the Asset Sale RP Amount or the Specified Asset Sale RP Amount.
(iii) If the Parent, the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03 (excluding Indebtedness incurred pursuant to Section 7.03(t))), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(vi) below an aggregate principal amount of Term Loans in an amount equal to 100.00% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Parent, the Borrower or such Restricted Subsidiary of such Net Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or prepay the ABL Facility or any Other Applicable Indebtedness with the Net Proceeds of such Indebtedness, then the Borrower may (x) first apply such Net Proceeds to make any required prepayments under the ABL Facility and (y) then apply the remainder of such Net Proceeds on a pro rata basis to the Term Loans and Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such Net Proceeds allocated to the ABL Facility and any Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the ABL Facility and any Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the “Excess Cash Flow Amount”Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.04(b)(iii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iv) [Reserved].
(v) [Reserved]
(vi) Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.04(b) shall be applied as set forth in between series, Classes or tranches of Term Loans on a pro rata basis, unless otherwise required by this Agreement or as directed by the Borrower to the extent not otherwise prohibited by this Agreement (provided that (1) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt, (2) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans and (3) no prepayment of Term Loans may be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any related earlier maturing Classes); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (vi) through (iii) of this Section 2.04(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.06(a) in direct order of maturity (without premium or penalty except as expressly contemplated by Section 2.04(a)(iii)); and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(vii) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (ii) and (viiiii) belowof this Section 2.04(b) at least four (4) Business Days prior to the date of such prepayment (or such shorter time as the Administrative Agent may agree). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (NGL Energy Partners LP), Term Loan Credit Agreement (NGL Energy Partners LP), Term Loan Credit Agreement (NGL Energy Partners LP)
Mandatory. (i) Upon Within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the incurrence related Compliance Certificate has been delivered pursuant to Section 6.02(a) (commencing with the fiscal year ending December 31, 2021), subject to Section 2.05(b)(v), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period covered by such financial statements minus, without duplication of any amount deducted from Consolidated Net Income in calculating Excess Cash Flow for such Excess Cash Flow Period, (B) the sum of (1) all voluntary prepayments of Term Loans made during such Excess Cash Flow Period pursuant to Section 2.05(a)(v), in an amount equal to the discounted amount actually paid in cash in respect of the principal amount of such Term Loans during such Excess Cash Flow Period or issuance after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all other optional redemptions or voluntary prepayments of Term Loans and any other Pari Passu Secured Obligations, during such Excess Cash Flow Period or after year-end and prior to when such Excess Cash Flow prepayment is due, (3) all voluntary prepayments of Revolving Loans, Extended Revolving Loans and Refinancing Revolving Loans during such Excess Cash Flow Period or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments, Extended Revolving Credit Commitments, and/or Refinancing Revolving Credit Commitments, as the case may be, are permanently reduced by the amount of such payments and (4) the amount equal to all payments in cash paid by the Borrowers or any Subsidiary in connection with the buyback of Loans pursuant to Section 10.07(l), in the case of each of the immediately preceding clauses (1), (2), (3) and (4), to the extent such prepayments are not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness) of the Borrower and its Restricted Subsidiaries; provided that, to the extent any deduction is made pursuant to the foregoing clauses (1), (2), (3) and (4) after year-end and prior to when such Excess Cash Flow prepayment is due, such prepayment shall not be deducted with respect to the Excess Cash Flow prepayment for the succeeding Excess Cash Flow Period; provided, however, the Borrowers shall not be obligated to make any prepayment otherwise required by this Section 2.05(b)(i) unless and until the aggregate amount of such prepayment for such Excess Cash Flow Period exceeds $1,000,000 for such Excess Cash Flow Period (and only amounts in excess of $1,000,000 for such Excess Cash Flow Period shall be required to be prepaid); provided further that if at the time that any such prepayment would be required, the Borrowers are required to offer to repurchase Other Applicable Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the Excess Cash Flow, then the Borrowers may apply such Excess Cash Flow on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided further that the portion of such Excess Cash Flow allocated to the Other Applicable Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly.
(ii) If (1) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets pursuant to Sections 7.05(j), (k) or (m) (solely to the extent set forth in the proviso thereof)), or (2) any Casualty Event occurs, which results in the receipt by the Borrower or any Restricted Subsidiary of Net Proceeds, subject to Section 2.05(b)(vi), the Borrowers shall cause to be prepaid on or prior to the date which is 10 Business Days after the date of the receipt by the Borrower or any Restricted Subsidiary of such Net Proceeds (or if the Borrower or any Restricted Subsidiary intends to reinvest such Net Proceeds within the Reinvestment Period or has entered into a binding commitment or binding letter of intent prior to the last day of the Reinvestment Period to reinvest, the last day of such Reinvestment Period), an aggregate principal amount of Term Loans in an amount equal to 100% of all such Net Proceeds; provided that, if the Borrower or its Restricted Subsidiaries use any portion of such proceeds to acquire, maintain, develop, construct, improve, upgrade or repair assets used or useful in the business of the Borrower or its Restricted Subsidiaries or to make Permitted Acquisitions or any acquisition permitted hereunder (or any subsequent investment made in a Person, division or line of business previously acquired) capital expenditure or capitalized software expenditures, in each case within 12 months of such receipt (or credited against any such usage consummated no more than 18 months prior to the applicable disposition), such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (or so credited with respect to any prior usage) (it being understood that if any portion of such proceeds are not so used within such 12-month period but within such 12-month period are contractually committed to be used, then upon the termination of such contract or if such Net Proceeds are not so used (or so credited with respect to any prior usage) within 18 months of such receipt, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso (such period, the “Reinvestment Period”)); provided, further, that (x) no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless (y) such Net Proceeds, after giving effect to the reinvestment rights set forth herein, exceeds $2,500,000 and (z) the aggregate Net Proceeds, after giving effect to the reinvestment rights set forth herein, exceeds $5,000,000 in any fiscal year (and thereafter only Net Proceeds in excess of such individual and annual amounts shall constitute Net Proceeds under this clause (a)). If at the time that any such prepayment would be required, the Borrowers are required to offer to repurchase Other Applicable Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds of such Disposition or Casualty Event, then the Borrowers may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided further that the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly.
(iii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness expressly A) not permitted to be incurred or issued pursuant to Section 7.03 or (except B) that is intended to constitute Replacement Term Loans or Credit Agreement Refinancing Indebtedness))Indebtedness in respect of any Class of Terms Loans, Revolving Loans or Revolving Credit Commitments, the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) cause to be prepaid an aggregate principal amount of Pro Rata Obligations such Term Loans (or, in the case of Credit Agreement Refinancing Indebtedness in respect of Revolving Loans or Revolving Credit Commitments, prepay such Revolving Loans and terminate such Revolving Credit Commitments) in an amount equal to 100.00100% of all Net Proceeds received therefrom on or prior to the gross cash proceeds received by date which is five Business Days after the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, Subsidiary of such Net Proceeds plus any additional premium (such prepayments (or Cash Collateralizationif any) owing pursuant to be applied as set forth in clauses (v) and (vii) belowSection 2.05(d).
(iiiv) In If for any reason the event aggregate Outstanding Amount of Revolving Loans and L/C Obligations at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrowers shall within two Business Days after receipt of written notice from the Revolving Agent or becoming aware of such excess prepay the Revolving Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) unless, after the prepayment in full of the Revolving Loans, such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(av) there shall be Consolidated Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any Excess Cash Flow for any Fiscal Year attributable to Foreign Subsidiaries (commencing with “Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable local law (including as a result of financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on upstreaming of cash intra group and the Fiscal Year ending December 31fiduciary and statutory duties of the directors of the relevant Subsidiaries) or (y) restricted by applicable material constituent documents or other material agreements (but solely to the extent such material agreements are not prohibited pursuant to Section 7.09), 2022) and (b) there are any Term Loans outstanding at an amount equal to the end portion of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Foreign Subsidiary Excess Cash Flow that would be so affected were the Borrowers to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 if the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States and (ii) to the extent that the Borrower has determined in good faith that repatriation of any Foreign Subsidiary Excess Cash Flow could reasonably be expected to result in a tax liability (including any withholding tax) or otherwise result in adverse Tax cost consequences for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other IndebtednessHoldings, in each case, secured other than a de minimis amount (as determined in good faith by the Borrower), the Borrower or any Subsidiary (including, for the avoidance of doubt, but not limited to, any Tax liability pursuant to Section 956 of the Code or a withholding Tax), an amount equal to such Foreign Subsidiary Excess Cash Flow that would be so affected will not be subject to repayment under this Section 2.05 and such amounts shall be available for general corporate purposes of the Loan Parties and their Subsidiaries as long as not required to be prepaid in accordance with this Section 2.05; provided that (A) for purposes of this Section 2.05, Excess Cash Flow shall be deemed allocable to each Foreign Subsidiary, with respect to any Excess Cash Flow Period, in an amount equal to (i) the Consolidated EBITDA of such Foreign Subsidiary for such Excess Cash Flow Period, divided by (ii) the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period (it being understood and agreed for the avoidance of doubt that such allocation shall exclude any reduction from interest and principal payments in respect of the Obligations) and (B) the Borrower and its Restricted Subsidiaries shall be entitled to reduce Excess Cash Flow owed to the Lenders pursuant to Section 2.05(b)(i) in respect of any Excess Cash Flow Period by the aggregate amount of Excess Cash Flow attributable to Foreign Subsidiaries subject to the limitations and restrictions described above in this Section 2.05(b)(v) for such Excess Cash Flow Period. For the avoidance of doubt, nothing in this Section 2.05 shall require the Borrowers to cause any amounts to be repatriated to the United States (whether or not such amounts are used in or excluded from the determination of the amount of any mandatory prepayments hereunder).
(vi) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any or all of the Net Proceeds of any Disposition by a Foreign Subsidiary (“Foreign Disposition”) or the Net Proceeds of any Casualty Event incurred by a Foreign Subsidiary (“Foreign Casualty Event”) would be (x) prohibited or delayed by applicable local law (including as a result of financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of the relevant Subsidiaries) or (y) restricted by applicable material constituent documents or other material agreements (but solely to the extent such material agreements are not prohibited pursuant to Section 7.09), an amount equal to the Net Proceeds that would be so affected were the Borrowers to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 if the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition or Foreign Casualty Event could reasonably be expected to result in a pari passu basis with the Liens securing the Obligations hereundertax liability (including any withholding tax)(other than a de minimis tax liability) or otherwise result in adverse Tax cost consequences for Holdings, in each case, made during other than a de minimis amount (as determined in good faith by the Borrower) (including, for the avoidance of doubt, but not limited to, any Tax liability pursuant to Section 956 of the Code or a withholding Tax), the Borrower or any Restricted Subsidiary with respect to such Fiscal Year or after Net Proceeds, an amount equal to such Net Proceeds that would be so affected will not be subject to repayment under this Section 2.05 and such amounts shall be available for general corporate purposes of the end Loan Parties and their Subsidiaries as long as not required to be prepaid in accordance with this Section 2.05. For the avoidance of such Fiscal Year and prior doubt, nothing in this Section 2.05 shall require the Borrowers to cause any amounts to be repatriated to the date United States (whether or not such Consolidated Excess Cash Flow prepayment is due (amounts are used in or excluded from the case determination of the amount of any such Revolving Credit mandatory prepayments hereunder).
(vii) Except as otherwise provided in any Refinancing Amendment, Extension Amendment or any Incremental Amendment or as otherwise provided herein, (A) each prepayment of Term Loans or other revolving Indebtedness prepaid, pursuant to the extent accompanied by a permanent reduction in the relevant commitment, and in the case this Section 2.05(b) shall be applied ratably to each Class of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, Term Loans then outstanding; provided that such amount so deducted (x) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in solely to each applicable Class of Refinanced Debt and (y) any prepayment of Term Loans with the Net Cash Proceeds of Replacement Term Loans shall be applied solely to each applicable Class of Refinanced Term Loans; (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (vi), (ii) and (viiiii) belowof this Section 2.05(b) shall be applied to the scheduled installments of principal thereof pursuant to Section 2.07(a) in a manner directed by the Borrower and specified in the notice of prepayment (and absent such direction, in direct order of maturity) and (C) each such prepayment shall be paid to the Lenders of each Class in accordance with their respective Pro Rata Shares of such prepayment.
(viii) The Borrower shall notify the Administrati
Appears in 3 contracts
Sources: Credit Agreement (AEVEX Corp.), Credit Agreement (AEVEX Corp.), Credit Agreement (AEVEX Corp.)
Mandatory. (i) Upon (A) Within 15 months after the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries receipt of any Indebtedness (other than Indebtedness expressly permitted to be incurred Net Proceeds of any Asset Sale, such Covenant Party or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of at its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one option:
(1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).permanently reduce
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year Obligations under Senior Secured Obligations and to correspondingly reduce commitments with respect thereto (commencing with the Fiscal Year ending December 31, 2022provided that (x) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash the terms of the Borrower Credit Agreement (or any syndicated credit facility that has substantially refinanced the term facility and/or the revolving facility under the Credit Agreement constituting Senior Secured Obligations) require that such Senior Credit Facilities Obligations are repaid with the Net Proceeds of Asset Sales prior to repayment of the Loans, the Covenant Parties and not from the proceeds of Indebtedness Restricted Subsidiaries shall be entitled to repay such Senior Credit Facilities Obligations prior to repaying the Loan Obligations and (y) subject to the foregoing clause (x), if the Covenant Parties or the sale or issuance of Equity Interests or equity contributions) andRestricted Subsidiaries shall so reduce Senior Secured Obligations, in the case of all such prepayments made after Borrower will equally and ratably reduce the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount Loan Obligations in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as manner set forth in clauses clause (v) and (viic) below.;
(b) Indebtedness constituting Senior Indebtedness other than Senior Secured Obligations so long as the Asset Sale proceeds are with respect to non-Collateral (provided that if the Covenant Parties or the Restricted Subsidiaries shall so reduce Senior Indebtedness, the Borrower will equally and ratably reduce the Loan Obligations in any manner set forth in clause (c) below);
Appears in 3 contracts
Sources: Senior Secured Loan Agreement (Nielsen Holdings B.V.), Senior Secured Loan Agreement (Nielsen Holdings B.V.), Senior Secured Loan Agreement (Nielsen CO B.V.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within five (other than Indebtedness expressly permitted to be incurred or issued 5) Business Days after financial statements have been delivered pursuant to Section 7.03 6.01(a) (except Credit Agreement Refinancing Indebtedness)commencing with the fiscal year ending December 31, 2025) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay cause to be offered to be prepaid in accordance with clause (or Cash Collateralizeb)(ix) below, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof Term Loans in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, an amount (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearamount, the Borrower shall, no later than one-hundred-twenty-five (125“Applicable ECF Amount”) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage 75.0% of such Consolidated Excess Cash Flow Flow, if any, for the fiscal year covered by such Fiscal Year less financial statements minus (B) the sum of (1) all voluntary prepayments or repurchases of Term LoansLoans made during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is made (including, in the case of Term Loans prepaid pursuant to Section 2.05(a)(v), the actual purchase price paid in cash pursuant to a “Dutch Auction”), (2) all voluntary prepayments, repurchases or redemptions of loans under the ABL Facility during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due (other than any Incremental Equivalent Debtsuch prepayment, Revolving repurchase or redemption made on the Closing Date in connection with the Transactions) to the extent the commitments under the ABL Facility are permanently reduced by the amount of such payments, (3) all voluntary prepayments, repurchases or redemptions of First Lien Notes (9.125%) and any Credit Loans and/or loans under Agreement Refinancing Indebtedness and any other IndebtednessIndebtedness that, in each case, matures on or prior to the Initial Term Loan Maturity Date and is secured on a pari passu basis with the Liens securing Initial Term Loans, and repurchased or redeemed on a pro rata basis or less than pro rata basis with the Obligations hereunder, in each case, made Initial Term Loans (except to the extent financed with proceeds of long-term funded Indebtedness) during such Fiscal Year fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, (4) the end amount of Restricted Payments paid in cash (or committed to be paid) during such Fiscal Year period or, at the option of the Borrower, paid after such period and prior to the date such Consolidated the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in the case of any a subsequent period, such Revolving Credit Loans amount shall be added back in calculating Excess Cash Flow for such subsequent period) pursuant to Section 7.06(i) (clauses (i), (ii) and (iii) only) or other revolving Indebtedness prepaidSection 7.06(g), to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash or borrowings under the ABL Facility, (5) cash payments by the Borrower and its respective Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Borrower and its respective Subsidiaries other than Indebtedness, to the extent financed with internally generated cash or borrowings under the ABL Facility, (6) at the option of the Borrower, an amount up to the aggregate face amount of outstanding Existing Term Loans and not from Existing Notes that mature on or prior to the twelve month anniversary of the date when such Excess Cash Flow prepayment is due and (7) without of duplication of any amounts deducted in the immediately preceding fiscal year pursuant to the foregoing clause (6), all voluntary prepayments, repurchases or redemptions of Existing Term Loans and Existing Notes (except to the extent financed with proceeds of long-term funded Indebtedness (other than revolving loans)) during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due (which shall be limited to the sale or issuance of Equity Interests or equity contributions) andactual purchase price paid in cash), in the case of all each of the immediately preceding clauses (1) through (7), without duplication of any deduction from Excess Cash Flow in any prior period; provided that such prepayments made prepayment shall be reduced if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or otherwise redeem any First Lien Notes (9.125%) with such Excess Cash Flow, in which case the Borrower may apply the Applicable ECF Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and the First Lien Notes (9.125%) at such time) and the remaining Applicable ECF Amount so received to the repurchase or redemption of the First Lien Notes (9.125%); provided, further, that (A) the portion of the Applicable ECF Amount allocated to the First Lien Notes (9.125%) shall not exceed the amount of the Applicable ECF Amount required to be allocated to the First Lien Notes (9.125%) pursuant to the terms thereof, and the remaining amount, if any, of the Applicable ECF Amount shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly and (B) to the extent the holders of the First Lien Notes (9.125%) decline to have such indebtedness repurchased or redeemed, the declined amount shall promptly (and in any event within ten (10) Business Days after the end date of such Fiscal Year rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, repayments pursuant to this Section 2.05(b)(i) shall only be required if the Applicable ECF Amount for such fiscal year is greater than $10,000,000 (and only such excess amount shall be applied to the payment thereof).
(ii) If (x) Holdings or any of its Subsidiaries Disposes of any property or assets pursuant to Section 7.05(j), (m) or (q) or (y) any Casualty Event occurs, which results in the realization or receipt by Holdings or Subsidiary of Net Proceeds, the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(ix) below, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by Holdings or any Subsidiary of such Consolidated Excess Cash Flow prepayment is dueNet Proceeds, provided that such subject to clause (b)(xi) below, an aggregate principal amount so deducted shall not be deducted from the Excess Cash Flow Amount of Term Loans in any subsequent period) an amount equal to 100% all Net Proceeds received (such amount, the “Excess Cash Flow AmountApplicable Proceeds”); provided that such prepayment shall be reduced if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any First Lien Notes or other Indebtedness (other than the Existing Secured Notes (4.750%)) outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Liens on the Collateral securing the Term Loans pursuant to the terms of the documentation governing the First Lien Notes or such other Indebtedness with the Net Proceeds of such Disposition or Casualty Event (such Indebtedness together with the Senior Secured Notes required to be offered to be so repurchased, “Other Applicable Indebtedness”), in which case the Borrower may apply the Applicable Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time) and the remaining Net Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that (A) the portion of the Applicable Proceeds (but not the other Net Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Applicable Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof; provided, further, that that only the amount of Net Proceeds in excess of $10,000,000 in the aggregate per fiscal year for all such Dispositions or Casualty Events shall be subject to prepayment pursuant to this Section 2.05(b)(ii) and, in such case, the required prepayment shall be only the amount in excess thereof.
(iii) If Holdings or any Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness permitted under Section 7.03 (excluding Section 7.03(t)), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(x) below an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by Holdings or such Subsidiary of such Net Proceeds.
(iv) [Reserved].
(v) [Reserved].
(vi) Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied on a pro rata basis to each Class of Term Loans then outstanding (provided that (i) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt, and (ii) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (i) through (iii) of this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment as directed by the Borrower (without premium or penalty) and, absent such direction, shall be applied in direct order of maturity to repayments thereof; and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(vii) belowThe Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iii) of this Section 2.05(b) at least four (4) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
Appears in 2 contracts
Sources: Term Loan Exchange Agreement (iHeartMedia, Inc.), Credit Agreement (iHeartMedia, Inc.)
Mandatory. (i) Upon the incurrence Within five (5) Business Days after financial statements have been (or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted are required to be incurred or issued have been) delivered pursuant to Section 7.03 6.01(a) (except Credit Agreement Refinancing Indebtednesscommencing with the fiscal year ending December 31, 2025) and the related Compliance Certificate has been (or is required to have been) delivered pursuant to Section 6.02(a), (the “ECF Date”), the Borrower shall prepay cause to be offered to be prepaid in accordance with clauses (or Cash Collateralizeb)(v) and (viii) below, as applicable) an aggregate principal amount of Pro Rata Obligations Initial Term Loans in an amount equal to 100.00% the Applicable Cash Percentage of Excess Cash Flow, if any, for the gross cash proceeds received fiscal year covered by such financial statements minus the Borrower sum of (A) all voluntary prepayments, repurchases, or any redemptions of its Restricted Subsidiaries from any Term Loans made during such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred fiscal year or reasonably anticipated to be incurred within ninety (90) days thereof thereafter (including, in connection therewiththe case of Term Loans prepaid pursuant to open-market purchases pursuant to Section 10.07(l), within one the actual purchase price paid in cash pursuant to such purchase) (1) Business Day following receipt thereof by excluding prepayments, repurchases, or redemptions to the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing extent funded with the Fiscal Year ending December 31proceeds of long-term funded indebtedness), 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments prepayments, repurchases, or redemptions of Term Loans, the loans under the Revolving Credit Facility during such fiscal year or within ninety (90) days thereafter to the extent the commitments in respect thereof are permanently reduced by the amount of such payments (excluding prepayments, repurchases, or redemptions to the extent funded with the proceeds of long-term funded indebtedness), and (C) all voluntary prepayments, repurchases, or redemptions of any Incremental Equivalent Debt, Revolving First Lien Debt or Credit Loans and/or loans under other IndebtednessAgreement Refinancing Indebtedness during such fiscal year or within ninety (90) days thereafter, in the case of each caseof clause (A), (B) and (C) above, to the extent secured on a pari passu basis with the Liens securing Initial Term Loans and prepaid, repurchased or redeemed on a pro rata basis or less than pro rata basis with the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year Initial Term Loans (and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidcredit facilities, to the extent accompanied by a permanent reduction in of the relevant corresponding commitment, and in the case of all such ) (excluding prepayments, repurchases, or redemptions to the extent that such prepayments are financed funded with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andlong-term funded Indebtedness), in the case of all each of the immediately preceding clauses (A) through (C), without duplication of any deduction from Excess Cash Flow in any prior period; provided that prepayments pursuant to Section 2.04(b)(i) shall only be required if the amount of Excess Cash Flow for such prepayments made fiscal year is greater than $5,000,000; provided that, if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or make a payment with respect to Other Applicable Indebtedness (as defined below) with Excess Cash Flow (and such Other Applicable Indebtedness has substantially equivalent reciprocal provisions permitting the ratable payment of the Initial Term Loans), then the Borrower may apply such Excess Cash Flow on a pro rata basis to the Initial Term Loans and Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Initial Term Loans and Other Applicable Indebtedness); provided, further, that (x) the portion of such Excess Cash Flow allocated to the Other Applicable Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow shall be allocated to the Initial Term Loans in accordance with the terms hereof to the prepayment of the Initial Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Initial Term Loans that would have otherwise been required pursuant to this Section 2.04(b)(i) shall be reduced accordingly and (y) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the end date of such Fiscal Year rejection) be applied to prepay the Initial Term Loans in accordance with the terms hereof.
(ii) If the Borrower or any Restricted Subsidiary receives Net Proceeds from any Disposition or any Casualty Event occurs which results in the realization or receipt by the Borrower or any Restricted Subsidiary of Net Proceeds, subject to the reinvestment rights specified in the definition of “Net Proceeds”, the Borrower shall offer to prepay (or cause to be offered to be prepaid) in accordance with Section 2.04(b)(v) and (viii) below, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of such Consolidated Excess Cash Flow prepayment is dueNet Proceeds, subject to Section 2.04(b)(viii) below, an aggregate principal amount of Term Loans in an amount equal to 100% of the Net Proceeds received; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or make a payment with respect to any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Term Loans pursuant to the terms of the documentation governing such Indebtedness (or any Permitted Refinancing thereof that is secured on a pari passu basis with the Obligations) with such Net Proceeds (such Indebtedness required to be offered to be so repurchased or required to be paid, “Other Applicable Indebtedness”), then the Borrower may apply such Net Proceeds on a pro rata basis (to the Term Loan and Other Applicable Indebtedness determined on the basis of the aggregate outstanding principal amount so deducted of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (x) the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds to be deducted from allocated to the Excess Cash Flow Amount Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.04(b)(ii) shall be reduced accordingly and (y) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any subsequent periodevent within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03 (excluding Indebtedness incurred pursuant to Section 7.03(t))), the Borrower shall cause to be offered to be prepaid in accordance with Section 2.04(b)(v) below an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Applicable Indebtedness with the Net Proceeds of such Indebtedness, then the Borrower may apply such Net Proceeds on a pro rata basis to the Term Loans and Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the “Excess Cash Flow Amount”Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.04(b)(iii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iv) [Reserved.]
(v) Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.04(b) shall be applied as set forth in between series, Classes or tranches of Term Loans on a pro rata basis, unless otherwise required by this Agreement or as directed by the Borrower to the extent not otherwise prohibited by this Agreement (provided that (1) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt, (2) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans and (3) no prepayment of Term Loans may be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any related earlier maturing Classes); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (vi) through (iii) of this Section 2.04(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.06(b) in direct order of maturity (without premium or penalty except as expressly contemplated by Section 2.04(a)(iii)); and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro rata Shares of such prepayment.
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (ii) and (viiiii) belowof this Section 2.04(b) at least four (4) Business Days prior to the date of such prepayment (or such shorter time as the Administrative Agent may agree). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro rata Share of the prepayment.
Appears in 2 contracts
Sources: Credit Agreement (WaterBridge Infrastructure LLC), Credit Agreement (WaterBridge Infrastructure LLC)
Mandatory. (i) Upon To the incurrence or issuance by extent that the Borrower or any of its Restricted Subsidiaries Net Cash Proceeds of any Indebtedness (other than Indebtedness expressly permitted to be incurred Asset Sale or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))Extraordinary Receipt exceeds $10,000,000, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Loans equal to 100.00100% of the gross cash proceeds received by such excess Net Cash Proceeds promptly after receipt thereof (or if the Borrower in good faith intends to use such Net Cash Proceeds to acquire, improve or maintain Pipeline Assets, Real Property or Easements related to Pipeline Assets or for capital assets to be used in any line of its Restricted Subsidiaries from business not prohibited by Section 7.07, then on or before the 365th day after such Asset Sale to the extent that, within such 365 day period, the Relevant Parties have not used such Net Cash Proceeds for such purpose, provided, that prepayment shall be required with such Net Cash Proceeds promptly after any earlier date on which the Borrower has determined not to use such Net Cash Proceeds for any such Indebtedness less purpose) (all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses clause (v) and (viiiii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow If for any Fiscal Year (commencing with reason the Fiscal Year ending December 31, 2022) and (b) there are Total Outstandings at any Term Loans outstanding at time exceed the end of such Fiscal YearAggregate Commitments, the Borrower shallshall immediately prepay Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, no later than one-hundred-twenty-five (125however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.04(b) days unless after the end of such Fiscal Year, prepay an aggregate principal amount prepayment in full of the Term Loans equal and L/C Borrowings, the Total Outstandings exceed the Aggregate Commitments then in effect.
(iii) Prepayments of the Facility made pursuant to this Section 2.04(b) shall be applied, first, ratably to the L/C Borrowings, second, ratably to the outstanding Swingline Borrowings, third, ratably to the outstanding Base Rate Loans (A) other than the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Swingline Loans), fourth, ratably to the outstanding Eurodollar Rate Loans, loans under any Incremental Equivalent Debtand fifth, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidprepayments under Section 2.04(b)(ii) only, to Cash Collateralize the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) remaining L/C Obligations; and, in the case of all such prepayments made of the Facility required pursuant to clause (i) or (ii) of this Section 2.04(b), the amount remaining, if any, after the end prepayment in full of all L/C Borrowings and Loans outstanding at such Fiscal Year and prior time and, in the case of prepayments under Section 2.04(b)(ii) only, the Cash Collateralization of the remaining L/C Obligations in full, may be retained by the Borrower. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the date such Consolidated Excess Cash Flow prepayment is dueBorrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, provided that such amount so deducted as applicable. Prepayments of the Facility made pursuant to this Section 2.04(b) shall not be deducted from result in a permanent reduction of the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowCommitments.
Appears in 2 contracts
Sources: Credit Agreement (Western Refining Logistics, LP), Credit Agreement (Western Refining Logistics, LP)
Mandatory. (i) [Reserved].
(ii) If any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) results in the receipt by the Borrower or any Restricted Subsidiary of any Net Cash Proceeds (a “Relevant Transaction”), then, except to the extent the Borrower elects to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrower shall prepay, subject to Section 2.05(b)(viii), an aggregate principal amount of Term Loans in an amount equal to 100% of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof (or within 15 Business Days after the later of the date the threshold referred to above is first exceeded and the date the relevant Net Cash Proceeds are received) by the Borrower or such Restricted Subsidiary. Any amounts mandatorily applied to prepay Senior Obligations in accordance with the provisions of the Senior Loan Documents related to mandatory prepayments from Asset Sales or Casualty Events (each as defined in the Senior Credit Agreement) shall reduce the Borrower’s obligation to prepay Term Loans under this Section 2.05(b)(ii) on a dollar-for-dollar basis.
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries Subsidiary of any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.01, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary. Any amounts mandatorily applied to prepay Senior Obligations in accordance with the provisions of the Senior Loan Documents related to mandatory prepayments from Indebtedness (as defined in the Senior Credit Agreement) shall reduce the Borrower’s obligation to prepay Term Loans under this Section 2.05(b)(iii) on a dollar-for-dollar basis.
(iv) [Reserved].
(v) [Reserved].
(vi) Subject to Section 2.17, (such prepayments (or Cash Collateralizationeach prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied at any time which an Event of Default has not occurred and is continuing to prepay any outstanding Term Loan Tranche on a pro rata basis. Amounts to be applied as set forth to a Term Loan Tranche in clauses (vconnection with prepayments made pursuant to this Section 2.05(b) and shall be applied to the remaining scheduled installments with respect to such Term Loan Tranche in direct order of maturity. All prepayments under this Section 2.05 that are to be applied to Term Loans shall be applied on a pro rata basis between the Initial Term Loans based on the then outstanding principal balances thereof.
(vii) below)[Reserved].
(iiviii) In the event that (a) there shall be Consolidated Excess Cash Flow for Notwithstanding any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end other provisions of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepaymentsthis Section 2.05, to the extent that such prepayments are financed with internally generated cash any or all of the Borrower Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary (and not from the proceeds of Indebtedness a “Foreign Disposition”) or the sale or issuance Net Cash Proceeds of Equity Interests or equity contributions) andany Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”), in the each case giving rise to a prepayment event pursuant to Section 2.05(b)(ii) are or is prohibited or restricted by applicable local law, rule or regulation (including, without limitation, financial assistance and corporate benefit restrictions and fiduciary and statutory duties of all such prepayments made after the end any direct or officers of such Fiscal Year and prior Subsidiaries) from being repatriated to the date Borrower or so prepaid or such Consolidated Excess repatriation or prepayment would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officer), the portion of such Net Cash Flow Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 but may be retained by the applicable Foreign Subsidiary.
(ix) Notwithstanding any other provisions of this Section 2.05, to the extent that the Borrower has determined in good faith that repatriation of any or all of the Net Cash Proceeds of any Foreign Disposition or any Foreign Casualty Event, in each case giving rise to a prepayment is dueevent pursuant to Section 2.05(b)(ii), provided that giving rise to a prepayment event pursuant to Section 2.05(b)(i) would have an adverse tax cost consequence on any direct or indirect parent of the Borrower, the Borrower or any Subsidiary (taking into account any foreign tax credit or benefit actually realized in connection with such amount repatriation) with respect to such Net Cash Proceeds, the Net Cash Proceeds so deducted affected may be retained by the applicable Foreign Subsidiary and no prepayment obligation in respect of such amounts shall be required under this Section 2.05(b).
(x) The Borrower shall not be deducted from required to monitor any Payment Block and/or reserve cash for future repatriation after the Excess Cash Flow Amount in any subsequent period) (Borrower has notified the Administrative Agent of the existence of such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowPayment Block.
Appears in 2 contracts
Sources: Subordination Agreement (KLDiscovery Inc.), Subordination Agreement (KLDiscovery Inc.)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), but in any event not later than one hundred and twenty-five (125) days after the end of each fiscal year of the Borrower beginning with the first full fiscal year ended after the Closing Date, the Borrower shall prepay an aggregate principal amount of Term Loans in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for the fiscal year covered by such financial statements commencing with the first full fiscal year ended after the Closing Date minus (B) the aggregate amount of voluntary principal prepayments of the Loans pursuant to Section 2.05(a)(i) (except prepayments of Revolving Credit Loans unless accompanied by a corresponding permanent commitment reduction of the Revolving Credit Facility) and of the Second Lien Loans pursuant to Section 2.05(a)(i) of the Second Lien Credit Agreement (but excluding for the avoidance of doubt, the Specified Junior Debt Repayment) minus (C) the aggregate discounted amount actually paid in cash by the Borrower Purchasing Parties in connection with all Discounted Voluntary Prepayments pursuant to Section 2.05(a)(iii) and all Discounted Voluntary Prepayments (as defined in the Second Lien Credit Agreement) of the Second Lien Loans pursuant to Section 2.05(a)(iii) of the Second Lien Credit Agreement (in the case of clauses (B) and (C), to the extent financed with internally generated funds); provided that such percentage shall be reduced to 25% or 0% if the Total Leverage Ratio as of the last day of the prior fiscal year was less than 3.90:1.00 or 3.40:1.00, respectively.
(A) If (x) the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets by the Borrower or any of its Restricted Subsidiaries permitted by Section 7.05(a), (b), (c), (d), (e), (f), (h), (i), (j), (k) or (l)) or (y) any Casualty Event occurs, and any transaction or series of related transactions described in the foregoing clauses (x) and (y) results in the realization or receipt by the Borrower and its Restricted Subsidiaries of Net Cash Proceeds in excess of $1,000,000 (any such transaction or series of related transactions being a “Relevant Transaction”), then if such Relevant Transaction, together with all other Relevant Transactions occurring in the same fiscal year of the Borrower, would result in the realization or receipt by the Borrower and its Restricted Subsidiaries of aggregate Net Cash Proceeds in excess of $2,500,000, the Borrower shall, except to the extent the Borrower elects to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 2.05(b)(ii)(B) (which election may only be made if no Event of Default has occurred and is then continuing), prepay an aggregate principal amount of Loans in an amount equal to 100% of all Net Cash Proceeds received from such Relevant Transaction within two (2) Business Days of receipt thereof by the Borrower or such Restricted Subsidiary.
(B) With respect to any Net Cash Proceeds realized or received with respect to any Disposition (other than as specifically excluded in Section 2.05(b)(ii)(A)) or any Casualty Event, at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or the applicable Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets useful for its business within three hundred and sixty-five (365) days following receipt of such Net Cash Proceeds (or, if Holdings, the Borrower or the relevant Restricted Subsidiary, as applicable, has contractually committed within 365 days following receipt of such Net Cash Proceeds to reinvest such Net Cash Proceeds, 545 days following receipt of such Net Cash Proceeds); provided, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to any such Net Cash Proceeds shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05.
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Specified Refinancing Debt or any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.03, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Loans in an amount equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(iiiv) In Within three (3) Business Days after the event entering into a Secured Cash Management Agreement that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearreplaces a Trade L/C or Trade L/C Collateralization, the Borrower shall, no later than one-hundred-twenty-five shall (125A) days after reduce the end of such Fiscal Year, Trade Facility Collateral Term Loan Amount and (B) prepay an aggregate principal amount of Term Loans, in each case in an amount equal to 100% of the aggregate principal amount of such Secured Cash Management Agreement, until such time as the Trade Facility Collateral Term Loan Amount is reduced to zero; it being acknowledged and agreed that the Borrower shall not be required to prepay the Term Loans equal with respect to any Secured Cash Management Agreement that (Ax) does not replace a Trade L/C or Trade L/C Collateralization or (y) is incurred after the Trade Facility Collateral Term Loan Amount has been reduced to zero.
(v) If for any reason (i) the ECF Percentage Total Revolving Credit Outstandings at any time exceed the aggregate Revolving Credit Commitments then in effect or (ii) the Total Revolving Credit Outstandings denominated in any Alternative Currency at any time exceed 103% of the Alternative Currency Sublimit with respect to such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term LoansAlternative Currency, loans under any Incremental Equivalent Debt, the Borrower shall immediately prepay Revolving Credit Loans and/or loans under other IndebtednessCash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, in each casehowever, secured on a pari passu basis with that the Liens securing Borrower shall not be required to Cash Collateralize the L/C Obligations hereunder, in each case, made during such Fiscal Year or pursuant to this Section 2.05(b)(v) unless after the end prepayment in full of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, and the Total Revolving Credit Outstandings exceed the aggregate Revolving Credit Commitments then in effect. Notwithstanding anything herein to the extent accompanied by a permanent reduction contrary, (x) if on any date the Administrative Agent shall determine in its sole discretion that, due to the fluctuations in the relevant commitmentSpot Rate, the Total Revolving Credit Outstandings exceed the aggregate Revolving Credit Commitments, the Administrative Agent shall notify the Borrower and the Revolving Credit Lenders of such excess and the Borrower shall, if the amount of such excess is 5% or more of the aggregate Revolving Credit Commitments, within three (3) Business Days of the receipt of such notice, prepay Revolving Credit Loans and/or Cash Collateralize or pay the L/C Obligations in the order and in the case manner provided in this Section 2.05(b)(v) in an amount sufficient to cause such excess to not exceed 5% of all such prepaymentsthe aggregate Revolving Credit Commitments and (y) if on any Revaluation Date the Administrative Agent shall determine in its sole discretion that, due to the extent that fluctuations in the Spot Rate, the Total Revolving Credit Outstandings exceed the aggregate Revolving Credit Commitments, the Administrative Agent shall notify the Borrower and the Revolving Credit Lenders of such prepayments are financed with internally generated cash excess and the Borrower shall, within three (3) Business Days of the Borrower receipt of such notice, prepay Revolving Credit Loans and/or Cash Collateralize or pay the L/C Obligations in the order and in the manner provided in this Section 2.05(b)(v).
(vi) Subject to Sections 2.14(b)(ii) and not from 2.16, each prepayment of Loans pursuant to this Section 2.05(b) (other than Section 2.05(b)(v)) shall be applied pro rata among (x) the proceeds of Indebtedness or Term Facility and (y) except for any prepayments pursuant to Section 2.05(b)(iv) (which shall be applied only to the sale or issuance of Equity Interests or equity contributionsTerm Facility) andand unless otherwise provided in the documentation governing any Incremental First Lien Term Loans, any Incremental First Lien Term Loans (or, in the case of all a Specified Refinancing Debt, to a Facility or Facilities designated by the Borrower to be refinanced with the proceeds thereof and allocated among such prepayments made after Facilities, as specified by the end Borrower) (and within any Class of the Term Facility and the Incremental First Lien Term Loans on a pro rata basis to the applicable Lenders of such Fiscal Year Class) and prior (i) in the case of the Term Facility, to the date such Consolidated Excess Cash Flow prepayment principal repayment installments thereof, first, in direct order of maturities, to the eight (8) next succeeding quarterly principal repayment installments of the Term Facility that are due pursuant to Section 2.07, second, on a pro rata basis, to the other principal repayment installments of the Term Facility that are due pursuant to Section 2.07 (excluding the installment due on the Maturity Date of each Class of Term Loans under the Term Facility) and, third, to the principal repayment installment of the Term Facility that is duedue pursuant to Section 2.07 on the Maturity Date of each Class of Term Loans under the Term Facility and (ii) in the case of each Incremental First Lien Term Loan Tranche, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) the Incremental First Lien Commitments Amendment with respect to such Incremental First Lien Term Loan Tranche; and (vii) beloweach such prepayment shall be paid to the Term Lenders and the Incremental First Lien Lenders in accordance with their respective Pro Rata Shares.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Evoqua Water Technologies Corp.), First Lien Credit Agreement (EWT Holdings I Corp.)
Mandatory. (i) Upon If for any reason the incurrence or issuance by Total Outstandings at any time exceed the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))Aggregate Commitments then in effect, the Borrower shall immediately (x) prepay (or Cash Collateralize, as applicable) Committed Loans in an aggregate principal amount of Pro Rata Obligations equal to 100.00% such excess and (y) if any excess remains after prepaying all Committed Loans as a result of outstanding L/C Obligations, pay to the Administrative Agent, on behalf of the gross cash proceeds received by L/C Issuers and the Borrower or any of its Restricted Subsidiaries from any Lenders, an aggregate amount equal to such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated excess in order to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or Cash Collateralize such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below)outstanding L/C Obligations.
(ii) In Upon any determination of or adjustment to the event that amount of the Borrowing Base pursuant to Section 2.05 (aother than pursuant to Section 2.05(c), 2.05(d) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31or 2.05(e)), 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearif a Borrowing Base Deficiency exists, the Borrower shall, no later than one-hundred-twenty-five (125) within ten days after the end being notified of such Fiscal YearBorrowing Base Deficiency, prepay provide an irrevocable written notice (the “Election Notice”) to Lender stating the action which Borrower proposes to take to remedy such Borrowing Base Deficiency, and the Borrower shall thereafter do one or a combination of the following (as elected by the Borrower pursuant to the Election Notice) in an aggregate principal amount sufficient to eliminate such Borrowing Base Deficiency:
(A) within ten days following the delivery (or required delivery) of such Election Notice, make a prepayment of the Committed Loans (and, if a Borrowing Base Deficiency remains after prepaying all of the Committed Loans as a result of outstanding L/C Obligations, pay to the Administrative Agent, on behalf of the L/C Issuers and the Lenders, an aggregate amount equal to such remaining deficiency in order to Cash Collateralize such outstanding L/C Obligations);
(B) pay in six equal monthly installments of the Outstanding Amount of the Committed Loans (and, if a Borrowing Base Deficiency remains after prepaying all of the Committed Loans as a result of outstanding L/C Obligations, pay to the Administrative Agent, on behalf of the L/C Issuers and the Lenders, an aggregate amount equal to such remaining deficiency in order to Cash Collateralize such outstanding L/C Obligations) over a term and in an amount satisfactory to the Administrative Agent (but in any event, with the first such monthly installment to be due on the thirtieth day following delivery of the Election Notice and each subsequent installment being equal to 1/6 of the aggregate amount of such Borrowing Base Deficiency due and payable on the dame date in each applicable subsequent calendar month), by immediately dedicating a sufficient amount of monthly cash flow from the Oil and Gas Properties of the Borrower and the other Loan Parties; and/or
(C) within thirty days following the delivery of the Election Notice, grant the Administrative Agent, on behalf of the Secured Parties, a first-priority Lien, pursuant to Collateral in form and substance satisfactory to the Administrative Agent, on additional Oil and Gas Properties not evaluated in the most recently delivered Engineering Report to the Administrative Agent and with an aggregate PV9 Pricing attributable thereto sufficient to eliminate such deficiency; provided that, in no event may the Borrower elect the option specified in this clause (ii)(C) (in whole or in part) if fewer than ninety-one days remain until the Maturity Date. Notwithstanding anything herein to the contrary, all payments required to be made pursuant to this Section 2.06(b)(ii) must, in any event, be made on or prior to the Maturity Date. In the event the Borrower fails to provide an Election Notice to the Administrative Agent within the ten day period referred to above, the Borrower shall be deemed to have irrevocably elected the option set forth in clause (ii)(B). The failure of the Borrower to comply with any of the options elected (including any deemed election) pursuant to the provisions of this Section 2.06(b)(ii) and specified in such Election Notice (or relating to such deemed election) shall constitute an immediate Event of Default.
(iii) Upon any adjustment to the amount of the Term Loans equal Borrowing Base pursuant to (ASection 2.05(c), 2.05(d) or 2.05(e), if a Borrowing Base Deficiency exists, then the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other IndebtednessBorrower shall, in each case, secured within two Business Days after the consummation or occurrence of the event or events giving rise to such Borrowing Base adjustment, prepay Committed Loans in an aggregate principal amount equal to such deficiency and (y) if any deficiency remains after prepaying all Committed Loans as a result of outstanding L/C Obligations, pay to the Administrative Agent, on a pari passu basis with behalf of the Liens securing L/C Issuers and the Obligations hereunderLenders, an aggregate amount equal to such excess in order to Cash Collateralize such outstanding L/C Obligations; provided that, notwithstanding anything herein to the contrary, all payments required to be made pursuant to this Section 2.06(b)(iii) must, in each caseany event, be made during such Fiscal Year on or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowMaturity Date.
Appears in 2 contracts
Sources: Refinancing Amendment (Sandridge Energy Inc), Credit Agreement (Sandridge Energy Inc)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Within five Business Days after financial statements have been delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable6.01(a) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year fiscal year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearrelated Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shallshall cause to be offered to be prepaid in accordance with clauses (b)(vi) and (ix) below, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans in an amount equal to (the “ECF Payment Amount”) (A) the Applicable ECF Percentage of such Consolidated Excess Cash Flow Flow, if any, for the fiscal year covered by such Fiscal Year less financial statements minus (B) the sum of (1) at the Borrower’s option, all voluntary prepayments prepayments, repurchases, or redemptions of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year fiscal year or after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to (x) Section 2.05(a)(v), the aggregate principal amount of Loans purchased, reduced, redeemed or retired pursuant to a “Dutch Auction” and (y) open-market purchases pursuant to Section 10.07(l), the aggregate principal amount of Loans purchased, reduced, redeemed or retired in connection with such purchase), (2) at the Borrower’s option, all voluntary prepayments, repurchases or redemptions of Revolving Credit Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, (3) at the Borrower’s option, all voluntary prepayments, repurchases or redemptions of any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g), Senior Secured Notes, Indebtedness incurred pursuant to the ABL Credit Agreement and any other Indebtedness (in the case of any such Revolving revolving credit facilities (including the ABL Credit Loans or other revolving Indebtedness prepaidAgreement), to the extent accompanied by a permanent reduction of the corresponding commitment), in each case secured by Liens on the relevant commitmentCollateral, and in repurchased or redeemed on a pro rata basis or less than pro rata basis with the case of all such prepayments, Initial Term Loans (except to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of long-term funded Indebtedness (other than revolving loans)) during such fiscal year or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due, provided that (4) the amount of Capital Expenditures or acquisitions of IP Rights to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash during such amount so deducted shall not be deducted from period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow Amount prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in any a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility), (5) the aggregate amount of all principal payments of Indebtedness of the Borrower or the Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including (A) the principal component of payments in respect of Financing Leases, (B) the amount of any scheduled repayment of Term Loans pursuant to Section 2.07, and (C) any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such amountincrease but excluding (X) all other voluntary and mandatory prepayments of Term Loans and all prepayments and repayments of Revolving Credit Loans and Swing Line Loans and (Y) all prepayments in respect of any other revolving credit facility, except in the “case of clause (Y) to the extent there is an equivalent permanent reduction in commitments thereunder to the extent financed with internally generated cash), (6) cash payments by the Borrower and the Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow Amountprepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, to the extent financed with internally generated cash, (7) the amount of Investments and acquisitions made (or committed to be made) by the Borrower and the Restricted Subsidiaries during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in cash pursuant to Section 7.02 (other than Section 7.02(a), (c) or (x)), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (8) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (9) the aggregate amount of expenditures made (or committed to be made) by the Borrower and its Restricted Subsidiaries in cash during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such expenditures are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period, to the extent financed with internally generated cash, (10) the aggregate amount of any premium, make-whole or penalty payments paid (or committed to be paid) in cash by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such premium, make-whole or penalty payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) that are required to be made in connection with any prepayment of Indebtedness, to the extent financed with internally generated cash, (11) the amount of cash taxes paid (or committed to be paid) in such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such taxes are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period and (12) (x) the aggregate consideration required to be paid in cash by the Borrower and its Restricted Subsidiaries pursuant to binding contracts, commitments, letters of intent or purchase orders (the “Contract Consideration”) entered into prior to or during such period and (y) the aggregate amount of cash that is reasonably expected to be applied as set forth expended in respect of any planned cash expenditures by the Borrower or any of the Restricted Subsidiaries in the case of each of clauses (vx) and (viiy), relating to acquisitions or other Investments or Capital Expenditures or acquisitions of IP Rights to the extent expected to be consummated or made, in each case during the period of eight consecutive fiscal quarters of the Borrower following the end of such period (or if committed to be made during such eight consecutive fiscal quarter period, during the period of two consecutive fiscal quarters of the Borrower following the end of such eight fiscal-quarter period); provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such acquisition or other Investment, Capital Expenditures or acquisitions of IP Rights during such period of eight consecutive fiscal quarters is less than the Contract Consideration (or if committed to during such eight consecutive fiscal quarter period, two consecutive fiscal quarters of the Borrower following the end of such eight fiscal-quarter period), the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of eight consecutive fiscal quarters (or if committed to during such eight consecutive fiscal quarter period, two consecutive fiscal quarters of the Borrower following the end of such eight fiscal-quarter period), in the case of each of the immediately preceding clauses (1) belowthrough (12), without duplication of any deduction from Excess Cash Flow in any prior period; provided that any such amounts described in the foregoing clauses (1) through (12) that have not been applied to reduce the prepayments which may be due from time to time pursuant to this Section 2.05(b)(i) shall be carried over to subsequent fiscal years, and may reduce the prepayments due from time to time pursuant to this Section 2.05(b)(i) during such fiscal years, until such time as such amounts have been used to reduce such prepayments which may be due from time to time minus (C) an amount equal to the greater of (x) $600,000,000 and (y) beginning with the first day of the fiscal quarter ending June 25, 2022, an amount equal to 25% of LTM Consolidated EBITDA at the time of such prepayment; provided further that, for the avoidance of doubt, only amounts in excess of the greater of (x) $600,000,000 and (y) beginning with the first day of the fiscal quarter ending June 25, 2022, an amount equal to 25% of LTM Consolidated EBITDA (at the election of the Borrower, with unused amounts described in this clause (C) carried forward to the next succeeding fiscal year and; provided that in the event that a prepayment is due in respect of a fiscal year pursuant to this Section 2.05(b)(i), the Borrower my elect, in its sole discretion, to use amounts pursuant to this clause (C) that would otherwise be available for the next succeeding fiscal year, which usage shall reduce such amounts available to the Borrower in such next succeeding fiscal year).
Appears in 2 contracts
Sources: Credit Agreement (Medline Inc.), Credit Agreement (Medline Inc.)
Mandatory. (i) Upon Subject in all respects to the incurrence or issuance prepayment and cash collateralization requirements under the Revolving Credit Agreement, and to the extent actually applied thereunder, to the extent not applied pursuant to the Revolving Credit Agreement with respect to Revolving Credit Facility Collateral, within three (3) Business Days of the receipt by the Borrower Company or any of its Restricted Subsidiaries of any Indebtedness Net Cash Proceeds from Asset Sales or Casualty Events (other than Indebtedness expressly permitted the Specified Sale) when aggregated with all such Net Cash Proceeds received prior to be incurred that time and not otherwise applied is equal to or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))greater than Proceeds Amount, the Borrower Company shall apply all such Net Cash Proceeds to prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by Loans in the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as manner set forth in clauses (v) and (vii) belowSection 2.08(b)(iv). After such application, the Net Cash Proceeds shall reset to zero upon the making of a mandatory prepayment pursuant to this Section 2.08(b)(i).
(ii) In Subject to Section 2.08(b)(vi), within three (3) Business Days after day of receipt by the event Company or any of its Subsidiaries of the Net Cash Proceeds from the Specified Sale, the Company shall apply an amount equal to the Applicable Prepayment Percentage of such Net Cash Proceeds (if any) to prepay the Loans in the manner set forth in Section 2.08(b)(iv). If the winning bid for any portion of assets or businesses that are part of a Specified Sale include a credit bid of New Money Loans (a) there as defined in the Existing DIP Term Loan Agreement), the amount of such credit bid shall be Consolidated deemed to be Net Cash Proceeds for purposes of this Section 2.08(b)(ii).
(iii) Beginning with the Excess Cash Flow Period ending on December 31, 2014, the Company shall calculate Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, Excess Cash Flow Period no later than one-hundred-twenty-five (125) days six months after the end of such Fiscal YearExcess Cash Flow Period (such date, prepay an aggregate principal amount the “Excess Cash Flow Calculation Date”) and deliver a certificate signed by a Responsible Officer setting forth the amount, if any, of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due Period and the calculation thereof in reasonable detail. If the Worldwide Cash as of the last day of the applicable Excess Cash Flow Period exceeds $800,000,000 (the “Excess Cash Trigger Amount”), the Company shall apply an amount equal to 50% of Excess Cash Flow above the Excess Cash Trigger Amount to prepay the Loans no later than 45 days following the Excess Cash Flow Calculation Date in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, manner set forth in Section 2.08(b)(iv); provided that no prepayment shall be required pursuant to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, this Section 2.08(iii) to the extent that such prepayments are financed with internally generated cash prepayment would cause (a) Worldwide Cash to be less than the Excess Cash Trigger Amount or (b) U.S. Minimum Liquidity to be less than $100,000,000.
(iv) Each prepayment of principal pursuant to this Section 2.08(b) shall be applied in the following order: (x) first, to the ratable prepayment of the Borrower First Lien Loans until all such Loans have been prepaid in full, and second to the ratable prepayment of the Junior Loans until all such Loans have been prepaid in full and (y) first to outstanding Base Rate Loans of each applicable Class up to the full amount thereof, and not from second to outstanding Eurodollar Rate Loans of each applicable Class up to the proceeds full amount thereof. Each prepayment made pursuant to this Section 2.08(b) shall be made together with any interest accrued to the date of Indebtedness or such prepayment on the sale or issuance of Equity Interests or equity contributions) principal amounts prepaid and, in the case of all any prepayment of a Eurodollar Rate Loan on a date other than the last day of an Interest Period or at its maturity, any additional amounts which the Company shall be obligated to reimburse to the Lenders in respect thereof pursuant to Section 9.04(c).
(v) The Agent shall give prompt notice of any prepayment required under this Section 2.08(b) to Lenders.
(vi) Notwithstanding any other provisions of this Section 2.08(b), (A) with respect only to any Asset Sale, IP License or Casualty Event described in Section 2.08(b)(i), to the extent that applicable law would effectively (1) prohibit or delay the repatriation to the United States of America of any Net Cash Proceeds received by any Subsidiary that is not a U.S. Subsidiary or (2) impose material adverse tax or legal consequences on the Company and its Subsidiaries if such prepayments made after Net Cash Proceeds were so repatriated, in each case as determined by the end Company in good faith, the portion of such Fiscal Year Net Cash Proceeds so affected shall be disregarded for purposes of determining the amount of any mandatory prepayment required to be made under this Section 2.08(b) so long, but only for so long, as applicable local law would prohibit such repatriation (the Company hereby agreeing to promptly take or to cause the applicable Subsidiary to promptly take (as the case may be) all actions required by the applicable local law to permit such repatriation) or impose such material adverse tax consequences, and prior at such time as such repatriation of any such Net Cash Proceeds becomes permitted under the applicable local law and/or such material adverse tax consequences would no longer exist (and in any event within three Business Days thereafter) (and whether or not any of such Net Cash Proceeds are actually repatriated), the Company shall prepay the Loans in accordance with Section 2.08(b)(iii), and (B) with respect only to the date such Consolidated any Excess Cash Flow prepayment described in Section 2.08(b)(iii), to the extent that applicable law would effectively prohibit or delay the repatriation to the United States of America of any proceeds received by any Subsidiary that is duenot a U.S. Subsidiary or result in material adverse tax consequences, provided that as determined by the Company in good faith, the proceeds so affected shall be disregarded for purposes of determining the amount of any mandatory prepayment required to be made under Section 2.08(b) so long, but only for so long, as applicable local law would prohibit such amount so deducted shall not be deducted from repatriation (the Excess Cash Flow Amount Company hereby agreeing to promptly take or to cause the applicable Subsidiary to promptly take (as the case may be) all actions required by the applicable local law to permit such repatriation), and at such time as such repatriation of any such proceeds becomes permitted under the applicable local law (and in any subsequent periodevent within three Business Days thereafter) (and whether or not any of such amountproceeds are actually repatriated), the “Excess Company shall prepay the Loans in accordance with Section 2.08(b)(iv).
(vii) Any Net Cash Flow Amount”) Proceeds not required to be applied to the prepayment of Loans pursuant to this Section 2.08 shall be available to the Company and its Subsidiaries to use for their general corporate purposes.
(viii) If any of the Loans would otherwise constitute an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code, at the end of any “accrual period” (as set forth defined in clauses Section 1272(a)(5) of the Code) ending after the fifth anniversary of the date of the Existing DIP Term Loan Agreement (veach, an “AHYDO Redemption Date”), the Company shall be required to redeem for cash a portion of each such Loan then outstanding equal to the Mandatory Principal Redemption Amount (each such redemption, a “Mandatory Principal Redemption”). The redemption price for the portion of each Loan thus redeemed shall be 100% of the principal amount of such portion plus any accrued interest thereon on the date of redemption. No partial redemption or repurchase of the Loans prior to any AHYDO Redemption Date pursuant to any other provision of this Agreement will alter the Company’s obligation to make any Mandatory Principal Redemption with respect to any Loans that remain outstanding on such AHYDO Redemption Date. The ordering rule in Section 2.08(b)(iv) and (vii) belowshall not apply to redemptions required pursuant to this Section 2.08(b)(viii).
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement
Mandatory. (i) Following the end of each fiscal year of the Holdings, commencing with the fiscal year ending December 31, 2022, the Borrower shall prepay Loans in an aggregate amount equal to (A) the ECF Prepayment Percentage of Excess Cash Flow for such fiscal year less (B) the aggregate principal amount of any voluntary prepayments in respect of Loans and other Indebtedness permitted to be incurred hereunder that ranks pari passu with the Loans (except, in each case, to the extent financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)) during such fiscal year or, without duplication, after the end of such fiscal year but prior to the date on which the prepayment described in this clause (i) (each, an “Excess Cash Flow Prepayment”) is required less (C) (x) the aggregate amount of cash actually paid by Holdings and its Restricted Subsidiaries during such fiscal year on account of capital expenditures, Permitted Acquisitions or other Permitted Investments (other than any amounts that were committed during a prior fiscal year to the extent such amounts reduced the Excess Cash Flow Prepayment in such prior fiscal year per clause (y) hereof (except, in each case, to the extent financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)), and (y) without duplication of amounts deducted from the Excess Cash Flow Prepayment in respect of a prior period, at the option of the Borrower, the aggregate consideration required to be paid in cash by Holdings and its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into during such fiscal year or, without duplication, after the end of such fiscal year but prior to the date on which the Excess Cash Flow Prepayment is required relating to capital expenditures, Permitted Acquisitions or other Permitted Investments, in each case, to be consummated or made during the period of four consecutive fiscal quarters of Holdings following the end of such period (except, in each case, to the extent financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)); provided that to the extent the aggregate amount actually utilized in cash to finance such capital expenditure, Permitted Acquisition or other Permitted Investment during such subsequent period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of the Excess Cash Flow Prepayment at the end of such subsequent period of four consecutive fiscal quarters, less (D) permitted Restricted Payments paid in cash or otherwise declared by Holdings during such fiscal year or, at the option of the Borrower, prior to the date on which the Excess Cash Flow Prepayment is required and permitted Restricted Payments paid in cash or otherwise declared by any Restricted Subsidiary to any person other than Holdings or any of the Restricted Subsidiaries during such fiscal year or, at the option of the Borrower, prior to the date on which the Excess Cash Flow Prepayment is required, in each case in accordance with Section 7.06; provided that, with respect to any reduction for any declared Restricted Payments, to the extent the aggregate amount actually utilized in cash in connection with any such Restricted Payment during the subsequent period of four consecutive fiscal quarters is less than the declared amount, the amount of such shortfall shall be added to the calculation of the Excess Cash Flow Prepayment at the end of such subsequent period of four consecutive fiscal quarters. Each Excess Cash Flow Prepayment shall be applied as set forth in clause (v) below and shall be made no later than the date that is five Business Days after the date on which financial statements are required to be delivered pursuant to Section 6.01(a) with respect to the fiscal year for which Excess Cash Flow is being calculated.
(ii) If Holdings or any of its Restricted Subsidiaries Disposes (including as a result of any casualty or condemnation) of any property (other than (A) any Disposition of any property permitted by any of Sections 7.05(a)-(i), (B) any Specified Disposition and (C) so long as the ABL Credit Agreement is in effect, any Disposition of ABL Priority Collateral, the proceeds of which are used to prepay the ABL Facility or cash collateralize undrawn letters of credit thereunder) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within five Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clause (v) below); provided that with respect to an aggregate amount of such Net Cash Proceeds not to exceed $10,000,000 received by Holdings and its Restricted Subsidiaries in any fiscal year under Dispositions described in this Section 2.03(b)(ii), such Net Cash Proceeds shall not be required to be so applied or used to make mandatory prepayments of Loans and any required prepayment in respect of such Disposition shall be only the amount in excess thereof; provided further that with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.03(b)(ii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, Holdings or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as (A) within 360 days after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if a definitive agreement to so reinvest has been executed within such 360-day period, then such reinvestment shall have been consummated within 180 days after the date of entering into of such definitive agreement (in each case, as certified by the Borrower in writing to the Administrative Agent); and provided further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be applied within five Business Days to the prepayment of the Loans as set forth in this Section 2.03(b)(ii).
(iii) Upon the incurrence or issuance by the Borrower Holdings or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 7.02 (except Credit Agreement other than any Refinancing IndebtednessTerm Loans or Refinancing Notes)), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Loans equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower Holdings or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (viv) and (viivi) below).
(iiiv) In Subject to clause (vi) below, each prepayment of Loans pursuant to any of the event that foregoing Sections 2.03(b)(i) through (aiii) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with applied, to the Fiscal Year ending December 31, 2022) Facility and (b) there are any Term Loans outstanding at to the end principal repayment installments thereof in direct order of such Fiscal Year, maturity to the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate next four principal amount repayment installments of the Term Loans equal Facility and, thereafter, to the remaining principal repayment installments (Aincluding any installment on the Maturity Date) of the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured Facility on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior pro rata basis.
(v) Notwithstanding anything to the date such Consolidated Excess Cash Flow prepayment is due contrary contained in Section 2.03(b)(i) through (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidiii), to the extent accompanied attributable to a Disposition by a permanent reduction in the relevant commitmentRestricted Subsidiary that is a Foreign Subsidiary, or arising from Excess Cash Flow attributable to a Foreign Subsidiary, and in the any such case of all such prepayments, a Restricted Payment or other distribution to the extent Borrower or Holdings is required (notwithstanding the Loan Parties’ commercially reasonable efforts to make such mandatory prepayment without making such Restricted Payment or other payment) in connection with such prepayment (or portion thereof), no prepayment (or a portion thereof) required under Section 2.03(b)(i) through (iii) shall be made if either of Holdings or any Restricted Subsidiary determines in good faith that it would incur a liability in respect of Taxes (including any withholding tax) in connection with making such prepayments are financed with internally generated cash Restricted Payment or other distribution which Holdings, in its reasonable judgment, deems to be material.
(vi) Prepayments of the Borrower (and not from Loans and, if applicable, Refinancing Term Loans with the proceeds of Indebtedness Refinancing Term Loans or the sale or issuance of Equity Interests or equity contributions) and, Refinancing Notes shall be made in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowaccordance with Section 2.14.
Appears in 2 contracts
Sources: Conforming Changes Amendment (Hyster-Yale Materials Handling, Inc.), Term Loan Credit Agreement (Hyster-Yale Materials Handling, Inc.)
Mandatory. (i) Upon If at any time the incurrence or issuance by aggregate outstanding Loans exceed the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Borrowing Base as reflected in the Borrowing Base Certificate most recently delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness6.02(e)), within 10 Business Days after delivery of such Borrowing Base Certificate, the Borrower shall prepay either (x) make additional Intercompany Secured Loans to Subsidiary Guarantors, and the Subsidiary Guarantors shall pledge additional Loan Receivables to the Borrower as collateral, in an amount sufficient to increase the Borrowing Base to an amount not less than the amount of then outstanding Loans or Cash Collateralize, as applicable(y) permanently repay outstanding Loans in an aggregate principal amount of Pro Rata Obligations equal to 100.00% such excess. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued and unpaid interest on the gross cash proceeds received by the Borrower or principal repaid together with any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated additional amounts required pursuant to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below)Section 3.05.
(ii) In Promptly following (A) the event that repayment of any Intercompany Secured Loan, if as a result of such repayment the aggregate outstanding Loans exceed the Borrowing Base as reflected in the Borrowing Base Certificate most recently delivered pursuant to Section 6.02(e) or (aB) there any time at which the aggregate outstanding Loans exceed the then outstanding aggregate amount of Intercompany Secured Loans plus Unrestricted Cash held by the Borrower (in an amount not to exceed $250.0 million) then, within 10 Business Days after such repayment the Borrower shall either (x) make additional Intercompany Secured Loans to Subsidiary Guarantors with the proceeds of such repayment, and the Subsidiary Guarantors shall pledge additional Loan Receivables to the Borrower as collateral, in an amount sufficient to increase the Borrowing Base to an amount not less than the amount of then outstanding Loans; or (y) to the extent such proceeds are not utilized in accordance with the foregoing clause (x), permanently repay outstanding Loans in an aggregate amount equal to such excess. Any prepayment of a Eurodollar Rate Loan shall be Consolidated Excess Cash Flow for accompanied by all accrued and unpaid interest on the principal repaid together with any Fiscal Year (commencing with additional amounts required pursuant to Section 3.05. Notwithstanding the Fiscal Year ending December 31foregoing, 2022each prepayment of Loans pursuant to this Section 2.03(b)(ii) and (b) there are any Term Loans outstanding at that is made on or prior to the end first anniversary of such Fiscal Year, the Closing Date shall be accompanied by a premium payable by the Borrower shall, no later than one-hundred-twenty-five (125) days after to the end ratable account of such Fiscal Year, prepay an aggregate the Lenders equal to 1.00% of the principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness so prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below.
Appears in 2 contracts
Sources: Credit Agreement (American General Finance Corp), Credit Agreement (American General Finance Inc)
Mandatory. (i) Upon If any Dispositions or Events of Loss with respect to any Property that includes any Pre-Petition BMO Primary Collateral, Pre-Petition CoBank Primary Collateral or Collateral (in an amount in excess of $1,000,000 in the incurrence aggregate) occur prior to the Termination Date and outside the ordinary course of business (no such Disposition to occur without Bankruptcy Court approval and with the Lenders reserving all rights, if any, to object to any such Disposition), 100% of the Net Proceeds thereof in excess of $1,000,000 (or issuance any greater amount that is a whole multiple of $250,000) in the aggregate (the “Prepayment Amount”) shall be applied as follows:
(A) First, to the costs, fees and expenses of the DIP Agent and the Lenders (including without limitation the reasonable fees and expenses of their counsel and other professionals, including those previously employed or retained by the Borrower or DIP Agent and the Lenders);
(B) Second, to interest and fees then due and then to the prepayment of all outstanding Loans and unreimbursed Reimbursement Obligations hereunder until all such Loans and Reimbursement Obligations shall be fully paid (but without any of its Restricted Subsidiaries of any Indebtedness reduction in the DIP Commitments resulting from such prepayments);
(other than Indebtedness expressly permitted C) Third, to be incurred held by the DIP Agent in the Cash Collateral Account (including to prefund outstanding Letters of Credit in an amount equal to 105% of the amount of all such Letters of Credit) until released or issued applied pursuant to Section 7.03 4.4 hereof (except Credit Agreement Refinancing Indebtednessbut without any reduction in the DIP Commitments resulting from such prepayments)); and
(D) Fourth, as the Financing Order shall provide if then in effect and otherwise as shall be determined by the Bankruptcy Court. Any such proceeds of sale designated to pay such taxes and costs of sale which are not required to be disbursed at the closing of such sale shall be held in escrow by the DIP Agent and shall be subject to the Lien of the DIP Agent, the Borrower shall prepay (or Cash CollateralizeLenders, as applicable) an aggregate principal the Pre-Petition BMO Agent, the Pre-Petition BMO Lenders, the Pre-Petition CoBank Agent and the Pre-Petition CoBank Lenders until applied to pay such taxes and costs of sale and the amount of Pro Rata Obligations equal all obligations secured by Permitted Liens that are senior to 100.00% of the gross cash proceeds received by DIP Agent’s in the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable Collateral and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below)Replacement Liens.
(ii) In Prior to the event that Termination Date, all Available Unrestricted Cash (aincluding without limitation all Available Unrestricted Cash consisting of proceeds of the inventory and proceeds of the accounts receivable of the Borrower and the Guarantors and all Cash Collateral generated in the ordinary course of the Borrower’s and the Guarantors’ businesses) there determined as of 12:00 noon, Chicago time, on any Business Day (other than amounts subject to Section 1.8(b)(i) hereof) in excess of $15,000,000 shall be Consolidated Excess deposited in the Collection Accounts referred to in Section 4.3 hereof and applied daily as follows:
(A) First, to the costs, fees and expenses of the DIP Agent and the Lenders (including without limitation the reasonable fees and expenses of their counsel and other professionals, including those previously employed or retained by the DIP Agent and the Lenders) that are then due and payable;
(B) Second, to interest and fees then due and payable and then to the prepayment of all outstanding Loans and unreimbursed Reimbursement Obligations hereunder until all such Loans and Reimbursement Obligations shall be fully paid (but without any reduction in the DIP Commitments resulting from such prepayments); and
(C) Third, to be held by the DIP Agent in the Cash Flow for any Fiscal Year Collateral Account (commencing with including to prefund outstanding Letters of Credit in an amount equal to 105% of the Fiscal Year ending December 31, 2022amount of all such Letters of Credit) and until released or applied pursuant to Section 4.4 hereof.
(biii) there are any Term Loans outstanding at the end of such Fiscal Year, the The Borrower shall, no later than one-hundred-twenty-five (125) days after on each date the end of such Fiscal YearDIP Commitments are reduced pursuant to Section 1.11 hereof, prepay an the DIP Loans, Swing Loans, and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term DIP Loans, loans under any Incremental Equivalent DebtSwing Loans, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the and L/C Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior then outstanding to the date such Consolidated Excess Cash Flow prepayment is due amount to which the DIP Commitments have been so reduced.
(iv) If at any time the sum of the unpaid principal balance of the DIP Loans, Swing Loans, and the L/C Obligations then outstanding shall be in excess of the case lesser of any such Revolving Credit Loans the DIP Commitments then in effect and the Borrowing Base as determined on the basis of the most recent Borrowing Base Certificate, the Borrower shall immediately and without notice or other revolving Indebtedness prepaid, demand pay over the amount of the excess to the extent accompanied by a permanent reduction in DIP Agent for the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash account of the Borrower (Lenders as and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andfor a mandatory prepayment on such Post-Petition Obligations, in the case of all with each such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) first to be applied to the DIP Loans and Swing Loans until paid in full with any remaining balance to be held by the DIP Agent in the Cash Collateral Account as set forth in clauses security for the Post-Petition Obligations owing with respect to outstanding Letters of Credit.
(v) and (viiEach prepayment of Loans under this Section 1.8(b) belowshall be made by the payment of the principal amount to be prepaid. Each prefunding of L/C Obligations shall be made in accordance with Section 4.4 hereof.
Appears in 2 contracts
Sources: Post Petition Credit Agreement (Pilgrims Pride Corp), Post Petition Credit Agreement (Pilgrims Pride Corp)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within five (other than Indebtedness expressly permitted to be incurred or issued 5) Business Days after financial statements have been delivered pursuant to Section 7.03 Section 6.01(a) (except Credit Agreement Refinancing Indebtedness)commencing with the fiscal year ending December 31, 2018) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay (or Cash Collateralizecause to be offered to be prepaid in accordance with clause (b)(vi) and (ix) below, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00% of (the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90“ECF Payment Amount”) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the Applicable ECF Percentage of such Consolidated Excess Cash Flow Flow, if any, for the fiscal year covered by such Fiscal Year less financial statements minus (B) the sum of (1) all voluntary prepayments prepayments, repurchases or redemptions of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year fiscal year or after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to (x) Section 2.05(a)(v), the actual purchase price paid in cash pursuant to a “Dutch Auction” and (y) open-market purchases pursuant to Section 10.07(l), the actual purchase price paid in cash pursuant to such purchase), (2) all voluntary prepayments, repurchases or redemptions of Revolving Credit Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, (3) all voluntary prepayments, repurchases or redemptions of any Incremental Equivalent First Lien Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g) and any other Indebtedness (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidcredit facilities, to the extent accompanied by a permanent reduction of the corresponding commitment), in each case secured on a pari passu basis with the relevant commitmentInitial Term Loans, and in repurchased or redeemed on a pro rata basis or less than pro rata basis with the case of all such prepayments, Initial Term Loans (except to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of long-term funded Indebtedness (other than revolving loans)) during such fiscal year or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due, provided that (4) the amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash during such amount so deducted shall not be deducted from period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow Amount prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in any a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility), (5) the aggregate amount of all principal payments of Indebtedness of the Borrower or its Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including (A) the principal component of payments in respect of Financing Leases, (B) the amount of any scheduled repayment of Term Loans pursuant to Section 2.07, and (C) any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but excluding (X) all other voluntary and mandatory prepayments of Term Loans and all prepayments and repayments of Revolving Credit Loans and Swing Line Loans and (Y) all prepayments in respect of any other revolving credit facility, except in the case of clause (Y) to the extent there is an equivalent permanent reduction in commitments thereunder to the extent financed with internally generated cash), (6) cash payments by the Borrower and its Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Borrower and its Restricted Subsidiaries other than Indebtedness, to the extent financed with internally generated cash, (7) the amount of Investments and acquisitions made (or committed to be made) by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in cash pursuant to Section 7.02 (other than Section 7.02(a), (c) or (x)), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (8) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) pursuant to Section 7.06(i) (clauses (i), (ii) or (iii) only) or Section 7.06(g), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (9) the aggregate amount of expenditures made (or committed to be made) by the Borrower and its Restricted Subsidiaries in cash during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such expenditures are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period, to the extent financed with internally generated cash, (10) the aggregate amount of any premium, make-whole or penalty payments paid (or committed to be paid) in cash by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such premium, make-whole or penalty payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) that are required to be made in connection with any prepayment of Indebtedness, to the extent financed with internally generated cash and (11) the amount of cash taxes paid (or committed to be paid) in such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such taxes are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period, in the case of each of the immediately preceding clauses (1) through (11), without duplication of any deduction from Excess Cash Flow in any prior period; provided that prepayments pursuant to this Section 2.05(b)(i) shall only be required for any fiscal year if the amount of ECF Prepayment Amount for such fiscal year is greater than $25,000,000; provided, further, that, for the avoidance of doubt, only amounts in excess of such $25,000,000 shall be prepaid pursuant to this Section 2.05(b)(i).
(ii) If (x) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets (other than any Disposition of any property or assets permitted by Sections 7.05(a), (b), (c), (d), (e), (g), (h), (i), (k), (l), (m) (except to the extent such property is subject to a Mortgage), (n), (o), (p), (q), (r) or (s)), or (y) any Casualty Event occurs, which results in the realization or receipt by the Borrower or Restricted Subsidiary of Net Proceeds, the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(vi) and (ix) below, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of such Net Proceeds, subject to clause (b)(xi) below, an aggregate principal amount of Term Loans in an amount equal to the Applicable Asset Sale Percentage of all Net Proceeds received (such amount, the “Excess Cash Flow AmountApplicable Proceeds”); provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Term Loans pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply the Applicable Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time) and the remaining Net Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that (A) the portion of the Applicable Proceeds (but not the other Net Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(vi) below an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Applicable Indebtedness with the Net Proceeds of such Indebtedness, then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(iii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof. If the Borrower or any other Loan Party incurs any Credit Agreement Refinancing Indebtedness, the Net Proceeds of such Credit Agreement Refinancing Indebtedness shall be used pursuant to clause (iv) of the definition thereof.
(iv) If for any reason the aggregate Revolving Credit Exposures at any time exceeds the aggregate Revolving Credit Commitments then in effect (including, for the avoidance of doubt, as a result of the termination of any Class of Revolving Credit Commitments on the Maturity Date with respect thereto), the Borrower shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(v) Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, Revolver Extension Request or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied as set forth in clauses between series, Classes or tranches of Term Loans as directed by the Borrower (vprovided that (i) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt, and (viiii) belowany Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (i) through (iv) of this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.07(a) in direct order of maturity (without premium or penalty), unless otherwise directed by the Borrower; and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iv) of this Section 2.05(b) at least four (4) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
Appears in 2 contracts
Sources: Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware)
Mandatory. (i) Upon The Borrower shall, on each Business Day, if applicable, (I) prepay (with no corresponding commitment reduction) an aggregate principal amount of the incurrence Revolving Loans owed by the Borrower and comprising part of the same Borrowings in an amount equal to the amount by which (A) the sum of (x) the aggregate principal amount of the Revolving Loans owed by the Borrower and then outstanding plus (y) the aggregate Letter of Credit Obligations then outstanding exceeds (B) the Line Cap (except as a result of Protective Revolving Loans made under Section 2.01(c) and not outstanding for more than 90 consecutive days) and (II) if, after giving effect to the prepayment in full of the Revolving Loans, the amount of Letter of Credit Obligations that has not at that time been Cash Collateralized exceeds the Line Cap, Cash Collateralize (such cash collateral to be deposited to the L/C Cash Deposit Account) an amount of Letter of Credit Obligations so that the amount of Letter of Credit Obligations that has not at that time been Cash Collateralized no longer exceeds the Line Cap; provided that in respect of any prepayment or issuance Cash Collateralization under this subsection directly attributable to any adjustment of Reserves, such prepayment or Cash Collateralization shall be made not later than the Business Day immediately following the date such adjusted Reserves became effective.
(ii) Within three (3) Business Days of receipt by the Borrower or any of its Restricted Subsidiaries of the Net Cash Proceeds of any Indebtedness Asset Sale (other than Indebtedness expressly permitted to be incurred a Specified Sale) or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))Casualty Event that results from the sale or other disposition of Accounts or Inventory that in each case constitutes Collateral, the Borrower shall prepay (or Cash Collateralize, as applicable) apply an aggregate principal amount of Pro Rata Obligations equal to 100.00100% of such Net Cash Proceeds to prepay the gross cash proceeds received Loans and, unless the conditions set forth in Section 3.02 are at the time satisfied and a Responsible Officer of the Borrower shall have delivered to the Agent a certificate to such effect (in which case such amounts may be transferred by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable to a Collection Account and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof used by the Borrower or such Restricted Subsidiaryand its Subsidiaries for general corporate purposes), to Cash Collateralize (such prepayments (or Cash Collateralization) cash collateral to be applied as set forth deposited to the L/C Cash Deposit Account) the Letter of Credit Obligations in clauses the following order: first to the ratable prepayment of the outstanding Revolving Loans until all such Loans have been prepaid in full, and second to Cash Collateralize the Letter of Credit Obligations (v) and (vii) belowif required).
(iiiii) In the event that [Reserved.]
(aiv) there [Reserved.]
(v) Each prepayment of principal pursuant to this Section 2.10(b) shall be Consolidated Excess Cash Flow for applied first to outstanding Base Rate Loans up to the full amount thereof and then to outstanding Eurodollar Rate Loans up to the full amount thereof. Each prepayment made pursuant to this Section 2.10(b) shall be made together with any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior interest accrued to the date of such Consolidated Excess Cash Flow prepayment is due (in on the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) principal amounts prepaid and, in the case of all such prepayments made after any prepayment of a Eurodollar Rate Loan on a date other than the end last day of such Fiscal Year and prior an Interest Period or at its maturity, any additional amounts which the Borrower shall be obligated to reimburse to the date such Consolidated Excess Cash Flow Lenders in respect thereof pursuant to Section 9.04(c).
(vi) The Agent shall give prompt notice of any prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”required under this Section 2.10(b) to be applied as set forth in clauses (v) and Lenders.
(vii) belowNo prepayment of Revolving Loans or Cash Collateralization made pursuant to this Section 2.10(b) shall reduce the Revolving Credit Commitments or the Letter of Credit Commitments.
Appears in 2 contracts
Sources: Debtor in Possession Credit Agreement (Eastman Kodak Co), Debtor in Possession Credit Agreement
Mandatory. (i) Upon In the incurrence event of any termination of any Tranche of Revolving Credit Commitments, the Borrowers shall, on the date of such termination, repay or issuance prepay all outstanding Revolving Credit Loans of such Tranche and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Outstanding Amount of Revolving Credit Loans of any Tranche of Revolving Credit Commitments at any time exceeds the amount of Revolving Credit Commitments of such Tranche then in effect, the Borrowers shall immediately prepay all outstanding Revolving Credit Loans of such Tranche and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless, after the prepayment in full of the Revolving Credit Loans of the applicable Tranche, the Total Outstandings exceeds the Total Revolving Credit Commitments then in effect. Mandatory prepayments of any Tranche of Revolving Credit Loans shall be made on a pro rata basis among the outstanding Revolving Credit Loans of such Tranche.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale or Permitted Sale Leaseback Transaction and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom by any Loan Party or any Restricted Subsidiary, ESI shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vi) provided that such prepayment shall only be required under this clause (ii) if the net amount required to be prepaid in any fiscal year is greater than or equal to $25,000,000. For the avoidance of doubt, no prepayments shall be required in connection with the Arysta Sale at any time before or after the Closing Date.
(iii) In the event that any Borrower or any of its Restricted Subsidiaries Subsidiary shall receive Net Cash Proceeds from the issuance or incurrence of any Indebtedness (other than Indebtedness expressly of any Borrower or any Restricted Subsidiary, in each case, that is not permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))8.02, the Borrower shall prepay Borrowers shall, substantially simultaneously with (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of and in any event not later than the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) fifth Business Day following next following) the receipt thereof of such Net Cash Proceeds by the such Borrower or such Restricted Subsidiary, (apply an amount equal to the Required Prepayment Percentage of such prepayments (or Net Cash Collateralization) Proceeds to be applied as set forth prepay outstanding Loans and/or Cash Collateralize Letters of Credit in clauses (v) and (vii) belowaccordance with Section 2.05(b)(vi).
(iiiv) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing Commencing with the Fiscal Year fiscal year ending on December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall2019, no later than one-hundred-twenty-five (125) 90 days after the end of such Fiscal Yeareach fiscal year of ESI, the Borrowers shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vi), in an aggregate principal amount of the Term Loans equal to (A) the ECF Required Prepayment Percentage of such Consolidated Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such Fiscal Year less fiscal year; provided that such prepayment shall only be required under this clause (Biv) all voluntary prepayments if the net amount required to be prepaid in any fiscal year is greater than or equal to $25,000,000.
(v) ESI shall deliver to the Administrative Agent, at the time of Term Loanseach prepayment required under this Section 2.05(b), loans under (i) a certificate signed by a Responsible Officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three Business Days prior written notice of any Incremental Equivalent Debtprepayment pursuant to Section 2.05(b)(i) and at least ten Business Days prior written notice of any prepayment pursuant to Section 2.05(b)(ii), Revolving Credit Loans and/or loans under other Indebtedness(iii) or (iv) (and, in each case, secured the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall be substantially in the form of Exhibit I and shall specify the prepayment date, the Class, Tranche and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vi) Mandatory prepayments under Sections 2.05(b)(ii), (iii) and (iv) shall be applied: first, to prepay outstanding Term Loans on a pari passu pro rata basis (in accordance with the Liens securing respective outstanding principal amounts thereof) to the Obligations hereunderfull extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Credit Loans on a pro rata basis among the relevant Tranches of Revolving Credit Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Credit Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 103% of the aggregate undrawn face amount of all such Letters of Credit) as described in each caseSection 2.03(g), made during with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrowers to be used in accordance with the provisions of this Agreement.
(vii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such Fiscal Year outstanding Term Loans are Base Rate Loans or after Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the end Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow mandatory prepayment is due (shall be applied in the case of any the applicable principal amount of such Revolving Credit Tranche of the Term Loans or other revolving Indebtedness being so prepaid, first to Term Loans that are Base Rate Loans to the full extent accompanied thereof before application to Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by a permanent reduction in the relevant commitment, and in the case of all such prepayments, Borrowers pursuant to Section 3.05. Notwithstanding anything herein to the extent that such prepayments are financed with internally generated cash of contrary, any Term Loan Lender may elect, by notice to the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and Administrative Agent by facsimile at least eight Business Days prior to the date applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to Section 2.05(b)(ii), (iii) or (iv), in which case the aggregate amount of the prepayment that would have been applied to prepay such Consolidated Excess Cash Flow prepayment is due, provided that such amount Term Loans but was so deducted declined shall not be deducted from retained by the Excess Cash Flow Amount in any subsequent period) Borrowers (such amountretained amounts, the “Excess Cash Flow AmountRetained Declined Proceeds”) to be applied as set forth used in clauses (v) and (vii) belowaccordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within five (other than Indebtedness expressly permitted to be incurred or issued 5) Business Days after financial statements have been delivered pursuant to Section 7.03 6.01(a) (except Credit Agreement Refinancing Indebtedness)commencing with the fiscal year ending December 31, 2020) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay cause to be offered to be prepaid in accordance with clause (or Cash Collateralizeb)(ix) below, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay in an aggregate principal amount of the Term Loans equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such Consolidated financial statements minus (B) the sum of (1) all voluntary prepayments, repurchases or redemptions of Term Loans made during such fiscal year or after year-end and prior to when such Excess Cash Flow for such Fiscal Year less prepayment is made (Bincluding, in the case of Term Loans prepaid pursuant to Section 2.05(a)(v), the actual purchase price paid in cash pursuant to a “Dutch Auction”, (2) all voluntary prepayments prepayments, repurchases or redemptions of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made ABL Facility during such Fiscal Year fiscal year or after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due to the extent the commitments under the ABL Facility are permanently reduced by the amount of such payments and (3) all voluntary prepayments, repurchases or redemptions of Senior Notes and any Incremental Equivalent First Lien Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g) and any other Indebtedness (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidcredit facilities, to the extent accompanied by a permanent reduction of the corresponding commitment), in each case secured on a pari passu basis with the relevant commitmentInitial Term Loans and the Second Amendment Incremental Term Loans, and in repurchased or redeemed on a pro rata basis or less than pro rata basis with the case of all such prepayments, Initial Term Loans and the Second Amendment Incremental Term Loans (except to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of long-term funded Indebtedness (other than revolving loans)) during such fiscal year or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due, provided that (4) the amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash during such amount so deducted shall not be deducted from period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow Amount prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in any a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with internally generated cash or borrowings under the ABL Facility), (5) cash payments by the Borrower and its respective Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Borrower and its respective Restricted Subsidiaries other than Indebtedness, to the extent financed with internally generated cash or borrowings under the ABL Facility, (6) the amount of Investments and acquisitions made (or committed to be made) by the Borrower and its respective Restricted Subsidiaries during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in cash pursuant to Section 7.02 (other than Section 7.02(a), (c), or (x)), to the extent financed with internally generated cash or borrowings under the ABL Facility and (7) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) pursuant to Section 7.06(i) (clauses (i), (ii) or (iii) only) or Section 7.06(g), to the extent financed with internally generated cash or borrowings under the ABL Facility, in the case of each of the immediately preceding clauses (1) through (7), without duplication of any deduction from Excess Cash Flow in any prior period; provided that repayments pursuant to this Section 2.05(b)(i) shall only be required if the amount of Excess Cash Flow for such fiscal year is greater than the greater of $100,000,000 and 10% of Consolidated EBITDA (and only such excess amount shall be applied to the payment thereof).
(ii) If (x) Holdings or any of its Restricted Subsidiaries Disposes of any property or assets pursuant to Sections 7.05 (j) or (m), or (y) any Casualty Event occurs, which results in the realization or receipt by Holdings or Restricted Subsidiary of Net Proceeds, the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(ix) below, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by Holdings or any Restricted Subsidiary of such Net Proceeds, subject to clause (b)(xi) below, an aggregate principal amount of Term Loans in an amount equal to the Applicable Asset Sale Percentage of all Net Proceeds received (such amount, the “Excess Cash Flow AmountApplicable Proceeds”); provided that no such prepayment shall be required if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Senior Secured Notes or other Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Liens securing the Term Loans pursuant to the terms of the documentation governing the Senior Secured Notes or such other Indebtedness with the Net Proceeds of such Disposition or Casualty Event (such Indebtedness together with the Senior Secured Notes required to be offered to be so repurchased, “Other Applicable Indebtedness”), in which case the Borrower may apply the Applicable Proceeds (on a pro rata basis determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time) and the remaining Net Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that (A) the portion of the Applicable Proceeds (but not the other Net Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Applicable Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof.
(iii) If Holdings or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness permitted under Section 7.03 (excluding Section 7.03(t)), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(x) below an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by Holdings or such Restricted Subsidiary of such Net Proceeds.
(iv) [Reserved].
(v) [Reserved].
(vi) Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied to each Class of Term Loans (as determined by the Borrower among such Classes) then outstanding (provided that (i) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt, and (ii) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (i) through (iii) of this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment as directed by the Borrower (without premium or penalty) and, absent such direction, shall be applied in direct order of maturity to repayments thereof; and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(vii) belowThe Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iii) of this Section 2.05(b) at least four (4) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
Appears in 2 contracts
Sources: Credit Agreement (iHeartMedia, Inc.), Credit Agreement (iHeartMedia, Inc.)
Mandatory. (i) Upon Commencing with the incurrence fiscal year ended December 31, 2020, within five (5) Business Days after the applicable Compliance Certificate for such fiscal year has been delivered pursuant to Section 6.02(a) (such date, the “ECF Payment Date”), the Borrowers shall, subject to clause (b)(vii) of this Section 2.05, cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus (B) the sum of (1) all voluntary prepayments or issuance repurchases in cash of (x) Term Loans or Incremental Equivalent Debt secured by any Applicable Lien or other Indebtedness constituting First Lien Obligations (other than Indebtedness described in clause (2)), or (y) any refinancing, replacement or extension of any of the foregoing (in each case, including any debt buyback conducted pursuant to a Dutch auction or open market purchase), in each case, during such fiscal year (to the extent not deducted from Excess Cash Flow in any prior period or pursuant to this clause (B) in the prior year) or after such fiscal year-end and prior to the ECF Payment Date (limited in the case of any voluntary prepayments made pursuant to Section 2.05(a)(v), Section 10.07(k) or Section 10.07(l), and in the case of repurchases of Indebtedness made at a discount to par, to the discounted amount actually paid in cash in respect of the principal amount of Term Loans or other Indebtedness (as opposed to the face amount so prepaid or repurchased)), (2) all voluntary prepayments of ABL Revolving Loans, Revolving Credit Loans and other revolving loans constituting First Lien Obligations during such fiscal year (to the extent not deducted from Excess Cash Flow in any prior period or this clause (B) in the prior year) or after year-end and prior to the ECF Payment Date, to the extent the ABL Revolving Credit Commitments, the Revolving Credit Commitments or revolving commitments in respect of such other revolving loans, as the case may be, are permanently reduced by the amount of such payments, and (3) all voluntary prepayments in cash of the any ABL Revolving Loans made on the Closing Date to account for any OID or upfront fees, and, in the case of each of the immediately preceding clauses (B)(1) through (B)(3), except to the extent such payments are funded with the proceeds of long-term Indebtedness (other than revolving Indebtedness) of a Borrower or any of its Restricted Subsidiaries Subsidiaries; provided that a prepayment of Term Loans pursuant to this Section 2.05(b)(i) in respect of any Indebtedness fiscal year shall only be required in the amount (other than Indebtedness expressly permitted if any) by which aggregate amount that would otherwise be due for such fiscal year exceeds $15,000,000; provided, further, that to the extent the sum of the amounts specified in clause (B) exceed the prepayments required to be incurred or issued made pursuant to Section 7.03 clause (except Credit Agreement Refinancing Indebtedness)A), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal full amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, excess shall carry over and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount required payments in any subsequent period) (years until such amount, the “Excess Cash Flow Amount”) to be applied time as set forth in clauses (v) and (vii) belowno excess remains.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.)
Mandatory. (i) For any Excess Cash Flow Period, within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Parent Borrower shall prepay an aggregate principal amount of Term Loans in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for such Excess Cash Flow Period, minus (B) the sum of (1) the aggregate amount of voluntary principal prepayments of the Loans and any other Indebtedness secured on a pari passu basis with the Term Loans, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market purchases, with credit given for the par amount of the Indebtedness so prepaid) (except prepayments of Loans under any Revolving Tranche or any other revolving Indebtedness that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches or the corresponding revolving credit commitments, as applicable), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness, (2) the sum of (I) repayments, prepayments, repurchases, redemptions and other cash payments made with respect to the principal of any Indebtedness (including principal representing capitalized interest) or the principal component of any Capitalized Lease Obligations of such Person or any of its Restricted Subsidiaries during such period (excluding voluntary and mandatory prepayments of Term Loans and any such payment from the proceeds of long-term Indebtedness, but including all premium, make-whole or penalty payments paid in cash (to the extent such payments are not expensed during such period or are not deducted in calculating Consolidated Net Income and such payments are not otherwise prohibited under this Agreement) and all repayments with respect to revolving Indebtedness to the extent accompanied by a corresponding reduction in commitments); provided that, with respect to any mandatory prepayment of Indebtedness (other than, for the avoidance of doubt, Term Loans), such prepayments shall only be deducted pursuant to this clause (i) to the extent not deducted in the computation of net proceeds in respect of the asset disposition or condemnation giving rise thereto; (II) (x) cash payments made by such Person or any of its Restricted Subsidiaries during such period in respect of capital expenditures, acquisitions (including of intellectual property) and Investments and (y) cash payments that such Person or any of its Restricted Subsidiaries has committed to make or is required to make in respect of capital expenditures, acquisitions (including of intellectual property) and Investments within 365 days after the end of such period pursuant to binding obligations entered into prior to or during such period or, at the Parent Borrower’s option, after the end of such period and prior to the date of such Excess Cash Flow payment for such period; provided that amounts described in this clause (y) will not reduce Excess Cash Flow in subsequent periods, and, to the extent not paid, will increase Excess Cash Flow in the subsequent period, (III) (x) cash payments made by such Person or any of its Restricted Subsidiaries during such period in respect of Taxes (including distributions to any Parent Holding Company in respect of Taxes), to the extent such payments exceed the amount of tax expense deducted in calculating such Consolidated Net Income, and (y) cash payments that such Person or any of its Restricted Subsidiaries will be required to make in respect of Taxes (including distributions to any Parent Holding Company in respect of Taxes) within 180 days after the end of such period, and (IV) to the extent not deducted in arriving at Consolidated Net Income, cash fees, expenses and purchase price adjustments incurred in connection with the Transactions, any acquisition consummated before or after the Closing Date or any Permitted Investment, Equity Issuance or debt issuance (whether or not consummated) and any Restricted Payment made to pay any of the foregoing incurred by Holdings and (3) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii) or (ix); provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the Consolidated First Lien Net Leverage Ratio (calculated after giving Pro Forma Effect to any prepayment or reduction as set forth in clause (B) above) as of the last day of the fiscal year to which such Excess Cash Flow Period relates was equal to or less than 4.75:1.00 or 4.25:1.00, respectively; provided, further, that no prepayment shall be required with respect to any Excess Cash Flow Period to the extent Excess Cash Flow for such period is equal to or less than $10,000,000 (and for such period such prepayment shall be limited to the amount in excess of $10,000,000); provided, further, that, if the Consolidated First Lien Net Leverage Ratio on a Pro Forma Basis after giving effect to any prepayment pursuant to clause (B) above and any Excess Cash Flow prepayment would result in the percentage in respect of the applicable Excess Cash Flow Period being reduced to 25% or 0%, then such reduced percentage applicable to the Excess Cash Flow prepayment required to be made shall apply; provided further that to the extent the amount of prepayments pursuant to subclause (B) above exceeds the amount that would otherwise be payable pursuant to this Section 2.05(b) in any given fiscal year, the excess thereof may be applied, in the Borrowers’ discretion, to any amount of Excess Cash Flow payable pursuant to this Section 2.05(b) in the immediately following fiscal year.
(ii) If any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) results in the receipt by any Borrower or any Restricted Subsidiary of aggregate Net Cash Proceeds in excess of $10,000,000 (“Relevant Transaction”), then, except to the extent the Parent Borrower elects to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrowers shall prepay, subject to Section 2.05(b)(viii), an aggregate principal amount of Term Loans in an amount equal to 100% (as may be adjusted pursuant to the second proviso below) of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of the end of such reinvestment period by such Borrower or such Restricted Subsidiary; provided that such Borrower may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness (and, in the case of revolving indebtedness, permanently reduce related commitments) that is secured by the Collateral on a pari passu basis with Liens securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I); provided, further, that, so long as no Event of Default shall have occurred and be continuing or would result therefrom, such prepayment percentage shall be reduced from 100% to 50% or 0% if, on a Pro Forma Basis after giving effect to such Asset Sale or Casualty Event, as the case may be, and the use of proceeds therefrom, the Consolidated First Lien Net Leverage Ratio would be equal to or less than 4.75:1.00 or 4.25:1.00 (such amounts not required to be prepaid as a result of such prepayment percentage reduction, the “Retained Asset Sale Proceeds”), respectively; provided, further, that only the amount of Net Cash Proceeds in excess of $10,000,000 in any fiscal year shall be subject to prepayment pursuant to this Section 2.05(b)(ii).
(iii) Upon the incurrence or issuance by the any Borrower or any of its Restricted Subsidiaries Subsidiary of any Refinancing Notes, any Specified Refinancing Term Loans or any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.01, the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans Loan Tranches in an amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Borrower or such Restricted Subsidiary.
(Aiv) Upon the ECF Percentage incurrence by any Borrower or any Restricted Subsidiary of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments any Specified Refinancing Debt constituting revolving credit facilities, the Borrowers shall prepay an aggregate principal amount of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans (and correspondingly reduce commitments) in an amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrowers or such Restricted Subsidiary.
(v) If for any reason the sum of the Total Revolving Credit Outstandings or the sum of outstanding Specified Refinancing Revolving Loans at any time exceed the sum of the Revolving Tranche in respect thereof (including after giving effect to any reduction in the Revolving Credit Commitments pursuant to Section 2.06), the Borrowers shall immediately prepay the Loans under the applicable Revolving Tranche and/or loans Cash Collateralize the L/C Obligations related thereto in an aggregate amount equal to such excess; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(v) unless after the prepayment in full of the Loans under the applicable Revolving Tranche the sum of the Total Revolving Credit Outstandings or the outstanding Specified Refinancing Revolving Loans, as the case may be, exceed the aggregate Revolving Credit Commitments or the commitments to make Specified Refinancing Revolving Loans, as the case may be, then in effect.
(vi) Subject to Section 2.17, each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied to each Term Loan Tranche on a pro rata basis (or, if agreed to in writing by the Majority Lenders of a Term Loan Tranche, in a manner that provides for more favorable prepayment treatment of other IndebtednessTerm Loan Tranches, so long as each other such Term Loan 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 Term Loan Tranche receiving less than such Pro Rata Share) (other than a prepayment of (x) Term Loans or Revolving Credit Loans, as applicable, with the proceeds of Indebtedness incurred pursuant to Section 2.18, which shall be applied to the Term Loan Tranche or Revolving Tranche, as applicable, being refinanced pursuant thereto or (y) Term Loans with the proceeds of any Refinancing Notes issued to the extent permitted under Section 7.01(a), which shall be applied to the Term Loan Tranche being refinanced pursuant thereto). Amounts to be applied to a Term Loan Tranche in connection with prepayments made pursuant to this Section 2.05(b) shall be applied to the remaining scheduled installments with respect to such Term Loan Tranche as directed by the Parent Borrower, and absent such direction, in direct order of maturity. Each prepayment of Term Loans under a Facility pursuant to this Section 2.05(b) shall be applied on a pro rata basis to the then outstanding Base Rate Loans and Eurocurrency Rate Loans under such Facility; provided that, if there are no Declining Lenders with respect to such prepayment, then the amount thereof shall be applied first to Base Rate Loans under such Facility to the full extent thereof before application to Eurocurrency Rate Loans, in each case, secured on case in a pari passu basis with manner that minimizes the Liens securing amount payable by the Obligations hereunder, Borrowers in each case, made during such Fiscal Year or after the end respect of such Fiscal Year and prior prepayment pursuant to the date such Consolidated Excess Cash Flow prepayment is due Section 3.06.
(vii) All prepayments under this Section 2.05 shall be made together with, in the case of any such Revolving Credit Loans or prepayment of a Eurocurrency Rate Loan on a date other revolving Indebtedness prepaidthan the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section 3.06 and, to the extent accompanied applicable, any additional amounts required pursuant to Section 2.05(a)(iii). Notwithstanding any of the other provisions of this Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Rate Loans is required to be made under this Section 2.05(b), other than on the last day of the Interest Period therefor, the Borrowers may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by a permanent reduction or notice to or from the Borrowers or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b) (it being agreed, for clarity, that interest shall continue to accrue on the relevant commitmentLoans so prepaid until the amount so deposited is actually applied to prepay such Loans). Upon the occurrence and during the continuance of any Event of Default, and the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrowers or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in the case accordance with this Section 2.05(b).
(viii) Notwithstanding any other provisions of all such prepaymentsthis Section 2.05, to the extent that such prepayments are financed with internally generated cash any or all of the Borrower Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary (and not from the proceeds or a Domestic Subsidiary of Indebtedness a Foreign Subsidiary) (a “Foreign Disposition”) or the sale Net Cash Proceeds of any Casualty Event from a Foreign Subsidiary (or issuance a Domestic Subsidiary of Equity Interests or equity contributionsa Foreign Subsidiary) and(a “Foreign Casualty Event”), in the each case of all such prepayments made after the end of such Fiscal Year and prior giving rise to the date such Consolidated a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) are or is dueprohibited, provided that restricted or delayed by applicable local law, rule or regulation (including, without limitation, financial assistance and corporate benefit restrictions and fiduciary and statutory duties of any director or officer of such amount Subsidiaries) from being repatriated to the Parent Borrower or so deducted shall not be deducted from prepaid or such repatriation or prepayment would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officer), the portion of such Net Cash Proceeds or Excess Cash Flow Amount so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 but may be retained by the applicable Foreign Subsidiary.
(ix) Notwithstanding any subsequent period) (such amountother provisions of this Section 2.05, to the “extent that the Parent Borrower has determined in good faith that repatriation of any or all of the Net Cash Proceeds of any Foreign Disposition or any Foreign Casualty Event, in each case giving rise to a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow Amount”giving rise to a prepayment event pursuant to Section 2.05(b)(i) to be applied as set forth in clauses would have an adverse tax cost consequence (vthat are not de minimis) and on the Parent Borrower or any Subsidiary or their Affiliates (vii) below.taking into account any foreign tax credit or benefit actually real
Appears in 2 contracts
Sources: Credit Agreement (Maravai Lifesciences Holdings, Inc.), Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Within five Business Days after financial statements have been delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable6.01(a) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year fiscal year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearrelated Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shallshall cause to be offered to be prepaid in accordance with clauses (b)(vi) and (ix) below, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans in an amount equal to (the “ECF Payment Amount”) (A) the Applicable ECF Percentage of such Consolidated Excess Cash Flow Flow, if any, for the fiscal year covered by such Fiscal Year less financial statements minus (B) the sum of (1) at the Borrower’s option, all voluntary prepayments prepayments, repurchases, or redemptions of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year fiscal year or after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to (x) Section 2.05(a)(v), the aggregate principal amount of Loans purchased, reduced, redeemed or retired pursuant to a “Dutch Auction” and (y) open-market purchases pursuant to Section 10.07(l), the aggregate principal amount of Loans purchased, reduced, redeemed or retired in connection with such purchase), (2) at the Borrower’s option, all voluntary prepayments, repurchases or redemptions of Revolving Credit Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, (3) at the Borrower’s option, all voluntary prepayments, repurchases or redemptions of any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g), Senior Secured Notes, Indebtedness incurred pursuant to the ABL Credit Agreement and any other Indebtedness (in the case of any such Revolving revolving credit facilities (including the ABL Credit Loans or other revolving Indebtedness prepaidAgreement), to the extent accompanied by a permanent reduction of the corresponding commitment), in each case secured by Liens on the relevant commitmentCollateral, and in repurchased or redeemed on a pro rata basis or less than pro rata basis with the case of all such prepayments, Initial Term Loans and the Dollar Incremental Term Loans (except to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of long-term funded Indebtedness (other than revolving loans)) during such fiscal year or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due, provided that (4) the amount of Capital Expenditures or acquisitions of IP Rights to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash during such amount so deducted shall not be deducted from period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow Amount prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in any a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility), (5) the aggregate amount of all principal payments of Indebtedness of the Borrower or the Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including (A) the principal component of payments in respect of Financing Leases, (B) the amount of any scheduled repayment of Term Loans pursuant to Section 2.07, and (C) any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but excluding (X) all other voluntary and mandatory prepayments of Term Loans and all prepayments and repayments of Revolving Credit Loans and Swing Line Loans and (Y) all prepayments in respect of any other revolving credit facility, except in the case of clause (Y) to the extent there is an equivalent permanent reduction in commitments thereunder to the extent financed with internally generated cash), (6) cash payments by the Borrower and the Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, to the extent financed with internally generated cash, (7) the amount of Investments and acquisitions made (or committed to be made) by the Borrower and the Restricted Subsidiaries during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in cash pursuant to Section 7.02 (other than Section 7.02(a), (c) or (x)), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (8) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (9) the aggregate amount of expenditures made (or committed to be made) by the Borrower and its Restricted Subsidiaries in cash during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such expenditures are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period, to the extent financed with internally generated cash, (10) the aggregate amount of any premium, make-whole or penalty payments paid (or committed to be paid) in cash by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such premium, make-whole or penalty payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) that are required to be made in connection with any prepayment of Indebtedness, to the extent financed with internally generated cash, (11) the amount of cash taxes paid (or committed to be paid) in such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such taxes are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period and (12) (x) the aggregate consideration required to be paid in cash by the Borrower and its Restricted Subsidiaries pursuant to binding contracts, commitments, letters of intent or purchase orders (the “Contract Consideration”) entered into prior to or during such period and (y) the aggregate amount of cash that is reasonably expected to be expended in respect of any planned cash expenditures by the Borrower or any of the Restricted Subsidiaries in the case of each of clauses (x) and (y), relating to acquisitions or other Investments or Capital Expenditures or acquisitions of IP Rights to the extent expected to be consummated or made, in each case during the period of eight consecutive fiscal quarters of the Borrower following the end of such period (or if committed to be made during such eight consecutive fiscal quarter period, during the period of two consecutive fiscal quarters of the Borrower following the end of such eight fiscal-quarter period); provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such acquisition or other Investment, Capital Expenditures or acquisitions of IP Rights during such period of eight consecutive fiscal quarters is less than the Contract Consideration (or if committed to during such eight consecutive fiscal quarter period, two consecutive fiscal quarters of the Borrower following the end of such eight fiscal-quarter period), the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of eight consecutive fiscal quarters (or if committed to during such eight consecutive fiscal quarter period, two consecutive fiscal quarters of the Borrower following the end of such eight fiscal-quarter period), in the case of each of the immediately preceding clauses (1) through (12), without duplication of any deduction from Excess Cash Flow in any prior period; provided that any such amounts described in the foregoing clauses (1) through (12) that have not been applied to reduce the prepayments which may be due from time to time pursuant to this Section 2.05(b)(i) shall be carried over to subsequent fiscal years, and may reduce the prepayments due from time to time pursuant to this Section 2.05(b)(i) during such fiscal years, until such time as such amounts have been used to reduce such prepayments which may be due from time to time minus (C) an amount equal to the greater of (x) $600,000,000 and (y) beginning with the first day of the fiscal quarter ending June 25, 2022, an amount equal to 25% of LTM Consolidated EBITDA at the time of such prepayment; provided further that, for the avoidance of doubt, only amounts in excess of the greater of (x) $600,000,000 and (y) beginning with the first day of the fiscal quarter ending June 25, 2022, an amount equal to 25% of LTM Consolidated EBITDA (at the election of the Borrower, with unused amounts described in this clause (C) carried forward to the next succeeding fiscal year and; provided that in the event that a prepayment is due in respect of a fiscal year pursuant to this Section 2.05(b)(i), the Borrower my elect, in its sole discretion, to use amounts pursuant to this clause (C) that would otherwise be available for the next succeeding fiscal year, which usage shall reduce such amounts available to the Borrower in such next succeeding fiscal year).
(ii) If (1) the Borrower or any Restricted Subsidiary Disposes of any property or assets constituting Collateral (excluding any ABL Priority Collateral, if applicable) pursuant to Sections 7.05 (j) or (aa), which results in the realization or receipt by the Borrower or Restricted Subsidiary of Net Proceeds, the Borrower shall cause to be offered to be prepaid in accordance with clauses (b)(vi) and (ix) below, on or prior to the date which is thirty (30) Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of such Net Proceeds, subject to clause (b)(xi) below, an aggregate principal amount of Term Loans in an amount equal to the Applicable Asset Sale Percentage of all Net Proceeds received (such amount, the “Excess Cash Flow AmountApplicable Proceeds”); provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g), the Senior Secured Notes, Indebtedness incurred pursuant to the ABL Credit Agreement, or any other Indebtedness outstanding at such time that, in each case, is secured by a Lien on the Collateral pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds of such Disposition (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply the Applicable Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time) and the remaining Net Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided further that (A) the portion of the Applicable Proceeds (but not the other Net Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof.
(viii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(vi) below an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five Business Days after the receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Applicable Indebtedness with the Net Proceeds of such Indebtedness, then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided further that (A) the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(iii) shall be reduced accordingly and (viiB) belowto the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof. If the Borrower or any other Loan Party incurs any Credit Agreement Refinancing Indebtedness, the Net Proceeds of such Credit Agreement Refinancing Indebtedness shall be used pursuant to clause (iv) of the definition thereof.
(iv) If for any reason the aggregate Revolving Credit Exposures at any time exceeds the aggregate Revolving Credit Commitments then in effect
Appears in 2 contracts
Sources: Credit Agreement (Medline Inc.), Credit Agreement (Medline Inc.)
Mandatory. (i) For any Excess Cash Flow Period, within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrower shall prepay an aggregate principal amount of the Term Loans for which the Borrower is responsible in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for such Excess Cash Flow Period, minus (B) the sum of (without duplication):
(1) the aggregate amount of voluntary principal prepayments of the Loans or Indebtedness that is pari passu in right of payment and security with the Initial Term Loans, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment, and prepayments in connection with the lender replacement provisions (including pursuant to Section 3.08)) (except prepayments of Loans under any Revolving Tranche or other revolving Indebtedness that is pari passu in right of payment and security with the Revolving Credit Commitments that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(2) the aggregate amount of voluntary principal prepayments of the Second Lien Loans or Indebtedness that is pari passu in right of payment and security with the Second Lien Loans, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment, and prepayments in connection with the lender replacement provisions) (except prepayments of Second Lien Loans under any revolving tranche or other revolving Indebtedness that is pari passu in right of payment and security with the Second Lien Loans that are not accompanied by a corresponding permanent commitment reduction of the revolving tranches), in each case other than to the extent that any such prepayment is funded with the proceeds of Second Lien Credit Agreement Refinancing Indebtedness or any other long-term Indebtedness,
(3) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii) or (ix),
(4) the portion of the Excess Cash Flow applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase Indebtedness that is pari passu in right of payment and security with the Initial Term Loans (in each case, to the extent the documentation governing such Indebtedness requires such a prepayment or repurchase thereof with Excess Cash Flow, in each case in an amount not to exceed the product of (x) the amount of Excess Cash Flow and (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and all such other Indebtedness), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(5) the amount of capital expenditures either made in cash by the Borrower or any of its Restricted Subsidiaries during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period and in each case other than to the extent that any such capital expenditures are funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(6) the aggregate amount of cash consideration paid by the Borrower or any Restricted Subsidiary (on a consolidated basis) in connection with any Investments (including, without limitation, any acquisitions, acquisitions of intellectual property and any deferred payments in connection with the Acquisition) during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period and in each case other than to the extent that any such cash consideration is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(7) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Section 2.05(b)(i)(B)(7) in respect of prior fiscal years, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such fiscal year relating to Investments (including, without limitation, any acquisitions, acquisitions of intellectual property and any deferred payments in connection with the Acquisition) or made pursuant to Section 7.05 or capital expenditures to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such fiscal year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and capital expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters; provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was equal to or less than 4.40:1.00 or 3.90:1.00, respectively (the amount described in this clause (i), the “ECF Prepayment Amount”); provided, further that no prepayment shall be required with respect to any Excess Cash Flow Period unless the ECF Prepayment Amount exceeds the greater of $10,000,000 and 6% of Four Quarter Consolidated EBITDA and, in such case, the ECF Prepayment Amount shall be the amount in excess thereof; provided, further that, if the Consolidated First Lien Net Leverage Ratio on a Pro Forma Basis after giving effect to any Excess Cash Flow prepayment would result in the percentage in respect of the applicable Excess Cash Flow Period being reduced to 25% or 0%, then such reduced percentage applicable to the Excess Cash Flow prepayment required to be made shall apply.
(1) If any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) results in the receipt by the Borrower or any Restricted Subsidiary of aggregate Net Cash Proceeds in excess of the greater of $25,000,000 and 15% of Four Quarter Consolidated EBITDA (“Relevant Transaction”), then, except to the extent the Borrower elects in a written notice to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrower shall prepay, subject to Section 2.05(b)(viii), an aggregate principal amount of Term Loans in an amount equal to 100% (as may be adjusted pursuant to the second proviso below) of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof (or within 15 Business Days after the later of the date the threshold referred to above is first exceeded and the date the relevant Net Cash Proceeds are received) by the Borrower or such Restricted Subsidiary; provided that the Borrower may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness that is pari passu in right of payment and security with the Initial Term Loans to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I); provided, further that only the amount of Net Cash Proceeds in excess of the greater of $25,000,000 and 15% of Four Quarter Consolidated EBITDA for any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) shall be subject to prepayment pursuant to this Section 2.05(b)(ii) and, in such case, the required prepayment shall be only the amount in excess thereof.
(2) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries Subsidiary of any Refinancing Notes, any Specified Refinancing Term Loans or any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.01, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loan Tranches in an amount equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii3) In Upon the event that (a) there shall be Consolidated Excess Cash Flow for incurrence by the Borrower or any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are Restricted Subsidiary of any Term Loans outstanding at the end of such Fiscal YearSpecified Refinancing Debt constituting revolving credit facilities, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, shall prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary.
(4) If for any reason the sum of the Total Revolving Credit Outstandings or the sum of outstanding Specified Refinancing Revolving Loans at any time exceed the sum of the applicable Revolving Tranche in respect thereof (including after giving effect to any reduction in the Revolving Credit Commitments pursuant to Section 2.06), the Borrower shall immediately prepay the Loans under the applicable Revolving Tranche and/or loans Cash Collateralize the L/C Obligations related thereto in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(v) unless after the prepayment in full of the Loans under the applicable Revolving Tranche the sum of the Total Revolving Credit Outstandings or the outstanding Specified Refinancing Revolving Loans, as the case may be, exceed the aggregate Revolving Credit Commitments or the commitments to make Specified Refinancing Revolving Loans, as the case may be, then in effect.
(5) Subject to Section 2.17, each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied to each Term Loan Tranche on a pro rata basis (or, if agreed to in writing by the Majority Lenders of a Term Loan Tranche, in a manner that provides for more favorable prepayment treatment of other IndebtednessTerm Loan Tranches, so long as each other such Term Loan 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 Term Loan Tranche receiving less than such Pro Rata Share) (other than a prepayment of (x) Term Loans or Revolving Credit Loans, as applicable, with the proceeds of Indebtedness incurred pursuant to Section 2.18, which shall be applied to the Term Loan Tranche or Revolving Tranche, as applicable, being refinanced pursuant thereto or (y) Term Loans with the proceeds of any Refinancing Notes issued to the extent permitted under Section 7.01(a), which shall be applied to the Term Loan Tranche being refinanced pursuant thereto). Amounts to be applied to a Term Loan Tranche in connection with prepayments made pursuant to this Section 2.05(b) shall be applied to interest on each such Term Loan Tranche on a pro rata basis that is accrued and payable at such time and thereafter to the remaining scheduled installments with respect to such Term Loan Tranche in direct order of maturity. Each prepayment of Term Loans under a Facility pursuant to this Section 2.05(b) shall be applied on a pro rata basis to the then outstanding Base Rate Loans and SOFR Loans under such Facility; provided that, if there are no Declining Lenders with respect to such prepayment, then the amount thereof shall be applied first to Base Rate Loans under such Facility to the full extent thereof before application to SOFR Loans, in each case, secured on case in a pari passu basis with manner that minimizes the Liens securing amount payable by the Obligations hereunder, Borrower in each case, made during such Fiscal Year or after the end respect of such Fiscal Year and prior prepayment pursuant to the date such Consolidated Excess Cash Flow prepayment is due Section 3.06.
(6) All prepayments under this Section 2.05 shall be made together with, in the case of any such Revolving Credit Loans or prepayment of a SOFR Loan on a date other revolving Indebtedness prepaidthan the last day of an Interest Period therefor, any amounts owing in respect of such SOFR Loan pursuant to Section 3.06 and, to the extent accompanied applicable, any additional amounts required pursuant to Section 2.05(a)(iii). Notwithstanding any of the other provisions of this Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of SOFR Loans is required to be made under this Section 2.05(b), other than on the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by a permanent reduction or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b) (it being agreed, for clarity, that interest shall continue to accrue on the relevant commitmentLoans so prepaid until the amount so deposited is actually applied to prepay such Loans). Upon the occurrence and during the continuance of any Event of Default, and the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in the case accordance with this Section 2.05(b).
(7) Notwithstanding any other provisions of all such prepaymentsthis Section 2.05, to the extent that such prepayments are financed with internally generated cash any or all of the Borrower Net Cash Proceeds of any Asset Sale by a Non-U.S. Subsidiary (and not from the proceeds or a U.S Subsidiary of Indebtedness a Non-U.S. Subsidiary) (a “Foreign Disposition”) or the sale Net Cash Proceeds of any Casualty Event from a Non-U.S. Subsidiary (or issuance a U.S. Subsidiary of Equity Interests or equity contributionsa Non-U.S. Subsidiary) and(a “Foreign Casualty Event”), in the each case of all such prepayments made after the end of such Fiscal Year and prior giving rise to the date such Consolidated a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) are or is dueprohibited, provided that restricted or delayed by applicable local law, rule or regulation (including, without limitation, financial assistance and corporate benefit restrictions and fiduciary and statutory duties of any director or officer of such amount Subsidiaries) from being repatriated to the Borrower or so deducted shall not be deducted from prepaid or such repatriation or prepayment would present a material risk of liability for the Excess Cash Flow Amount in applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any subsequent period) (such amountdirector or officer), the “Excess portion of such Net Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below.Proceeds or E
Appears in 2 contracts
Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.), First Lien Credit Agreement (ZoomInfo Technologies Inc.)
Mandatory. (i) Upon In the incurrence event of any termination of any Tranche of Revolving Credit Commitments, the Borrowers shall, on the date of such termination, repay or issuance prepay all outstanding Revolving Credit Loans of such Tranche and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Outstanding Amount of Revolving Credit Loans of any Tranche of Revolving Credit Commitments at any time exceeds the amount of Revolving Credit Commitments of such Tranche then in effect, the Borrowers shall immediately prepay all outstanding Revolving Credit Loans of such Tranche and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless, after the prepayment in full of the Revolving Credit Loans of the applicable Tranche, the Total Outstandings exceeds the Total Revolving Credit Commitments then in effect. Mandatory prepayments of any Tranche of Revolving Credit Loans shall be made on a pro rata basis among the outstanding Revolving Credit Loans of such Tranche.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale or Permitted Sale Leaseback Transaction and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom by any Loan Party or any Restricted Subsidiary, ESI shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vi) provided that such prepayment shall only be required under this clause (ii) if the net amount required to be prepaid in any fiscal year is greater than or equal to $25,000,000. For the avoidance of doubt, no prepayments shall be required in connection with the Arysta Sale at any time before or after the Closing Date.
(iii) In the event that any Borrower or any of its Restricted Subsidiaries Subsidiary shall receive Net Cash Proceeds from the issuance or incurrence of any Indebtedness (other than Indebtedness expressly of any Borrower or any Restricted Subsidiary, in each case, that is not permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))8.02, the Borrower shall prepay Borrowers shall, substantially simultaneously with (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of and in any event not later than the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) fifth Business Day following next following) the receipt thereof of such Net Cash Proceeds by the such Borrower or such Restricted Subsidiary, (apply an amount equal to the Required Prepayment Percentage of such prepayments (or Net Cash Collateralization) Proceeds to be applied as set forth prepay outstanding Loans and/or Cash Collateralize Letters of Credit in clauses (v) and (vii) belowaccordance with Section 2.05(b)(vi).
(iiiv) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing Commencing with the Fiscal Year fiscal year ending on December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall2019, no later than one-hundred-twenty-five (125) 90 days after the end of such Fiscal Yeareach fiscal year of ESI, the Borrowers shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vi), in an aggregate principal amount of the Term Loans equal to (A) the ECF Required Prepayment Percentage of such Consolidated Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such Fiscal Year less fiscal year; provided that such prepayment shall only be required under this clause (Biv) all voluntary prepayments if the net amount required to be prepaid in any fiscal year is greater than or equal to $25,000,000.
(v) ESI shall deliver to the Administrative Agent, at the time of Term Loanseach prepayment required under this Section 2.05(b), loans under (i) a certificate signed by a Responsible Officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three Business Days prior written notice of any Incremental Equivalent Debtprepayment pursuant to Section 2.05(b)(i) and at least ten Business Days prior written notice of any prepayment pursuant to Section 2.05(b)(ii), Revolving Credit Loans and/or loans under other Indebtedness(iii) or (iv) (and, in each case, secured the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall be substantially in the form of Exhibit I and shall specify the prepayment date, the Class, Tranche and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vi) Mandatory prepayments under Sections 2.05(b)(ii), (iii) and (iv) shall be applied: first, to prepay outstanding Term Loans on a pari passu pro rata basis (in accordance with the Liens securing respective outstanding principal amounts thereof) to the Obligations hereunderfull extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Credit Loans on a pro rata basis among the relevant Tranches of Revolving Credit Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Credit Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 103% of the aggregate undrawn face amount of all such Letters of Credit) as described in each caseSection 2.03(g), made during with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrowers to be used in accordance with the provisions of this Agreement.
(vii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such Fiscal Year outstanding Term Loans are Base Rate Loans, RFR Loans, EURIBO Rate Loans or after Term SOFR Loans; provided that if no Lenders decline a given mandatory prepayment of the end Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow mandatory prepayment is due (shall be applied in the case of any the applicable principal amount of such Revolving Credit Tranche of the Term Loans being so prepaid, first to Term Loans that are Base Rate Loans to the full extent thereof before application to Term Loans that are EURIBO Rate Loans, Term SOFR Loans or other revolving Indebtedness prepaid, RFR Loans in a manner that minimizes the amount of any payments required to be made by the Borrowers pursuant to Section 3.05. Notwithstanding anything herein to the extent accompanied contrary, any Term Loan Lender may elect, by a permanent reduction in the relevant commitment, and in the case of all such prepayments, notice to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and Administrative Agent by facsimile at least eight Business Days prior to the date applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to Section 2.05(b)(ii), (iii) or (iv), in which case the aggregate amount of the prepayment that would have been applied to prepay such Consolidated Excess Cash Flow prepayment is due, provided that such amount Term Loans but was so deducted declined shall not be deducted from retained by the Excess Cash Flow Amount in any subsequent period) Borrowers (such amountretained amounts, the “Excess Cash Flow AmountRetained Declined Proceeds”) to be applied as set forth used in clauses (v) and (vii) belowaccordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within five (other than Indebtedness expressly permitted to be incurred or issued 5) Business Days after financial statements pursuant to Section 7.03 6.01(a) and the related Compliance Certificate pursuant to Section 6.02(a) are required to have been delivered (except Credit Agreement Refinancing Indebtedness)commencing with the fiscal year ending December 31, 2021), the Borrower shall prepay cause to be offered to be prepaid (or the date such prepayment is made, the “Excess Cash CollateralizeFlow Prepayment Date”) in accordance with clause (ix) below, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00% (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the gross cash proceeds received fiscal year covered by such financial statements minus (B) the Borrower or any sum of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof all voluntary prepayments of Term Loans made during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due (including the aggregate principal amount of Term Loans prepaid pursuant to Section 2.05(a)(iv) during such time up to the actual cash purchase price thereof), and (2) all voluntary prepayments of revolving loans constituting Permitted First Priority Debt during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the commitments in respect of such revolving loans constituting Permitted First Priority Debt are permanently reduced by the Borrower or amount of such Restricted Subsidiarypayments, (such prepayments (or Cash Collateralization) to be applied as set forth in the case of each of the immediately preceding clauses (v1) and (vii2), to the extent not financed with proceeds of long-term Indebtedness and without duplication of any such deduction from Excess Cash Flow or any prepayment amount required under this clause (b) belowin any prior period; provided, that, notwithstanding the foregoing, prepayments of Term Loans under this Section 2.05(b)(i) shall be required only to the extent the amount calculated above, after giving effect to the deductions described in clause (B) above, is greater than $2,500,000 (with only such excess amount being subject to prepayment under this Section 2.05(b)(i)).
(ii) In If (x) any Loan Party or Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) or (o)) or (y) any Casualty Event occurs, which results in the event that (a) there shall be Consolidated Excess Cash Flow for receipt by any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end Loan Party of such Fiscal YearNet Proceeds, the Borrower shallshall cause to be offered to be prepaid in accordance with clause (ix) below, no later than one-hundred-twenty-on or prior to the date which is five (1255) days Business Days after the end date of the receipt by such Loan Party of such Fiscal YearNet Proceeds, prepay an aggregate principal amount of the Term Loans in an amount equal to 100% of all Net Proceeds received; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Permitted First Priority Debt (Aor any Permitted Refinancing thereof) pursuant to the ECF Percentage terms of the documentation governing such Indebtedness with the Net Proceeds of such Consolidated Excess Cash Flow for Disposition or Casualty Event (such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, Permitted First Priority Debt that is secured on a pari passu basis with the Liens securing the Obligations hereunder(or any Permitted Refinancing thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Proceeds, subject to clause (ix) below, on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further that (A) the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in each caseaccordance with clause (ix) and the other terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, made during and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such Fiscal Year indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the end date of such Fiscal Year rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) [Reserved].
(iv) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03 (excluding Section 7.03(t)), the Borrower shall cause to be offered to be prepaid in accordance with clause (ix) below an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on the date of receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds.
(v) [Reserved].
(vi) Except with respect to Loans incurred in connection with any Term Loan Extension Request or any Incremental Amendment (which may be prepaid on less than a pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied ratably to each Class of Term Loans then outstanding (provided that (i) [reserved], and (ii) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (i) through (iv) of this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.07(a) in direct order of maturity (or as otherwise determined by the Borrower); and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(vii) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to clauses (i) through (iv) of this Section 2.05(b) at least three (3) Business Days prior to the date of such Consolidated Excess Cash Flow prepayment. Each such notice shall specify the date of such prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by and provide a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash reasonably detailed calculation of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end amount of such Fiscal Year prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and prior to of such Appropriate Lender’s Pro Rata Share of the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowprepayment.
Appears in 2 contracts
Sources: Credit Agreement (Nebula Parent Corp.), Credit Agreement (Nebula Parent Corp.)
Mandatory. (i) Upon Following the incurrence or issuance by the Borrower or any end of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any each Fiscal Year (of BRW commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year2003, the Borrower Borrowers shall, no later than one-hundred-twenty-five (125) days after on the 90th day following the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans Advances comprising part of the same Borrowings made by such Borrower in an amount equal to (A) 75% of the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Year. Each such prepayment shall be applied ratably first to the Term LoansFacilities and to the installments thereof pro rata to the remaining installments thereof, loans under any Incremental Equivalent Debt, and second to the Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied Facility as set forth in clause (vi) below.
(ii) The Borrowers shall, on the date of receipt of the Net Cash Proceeds by any Loan Party or any of its Subsidiaries from (A) the sale, lease, transfer or other disposition of any assets of any Loan Party or any of its Subsidiaries (other than any sale, lease, transfer or other disposition of assets pursuant to (x) clauses (i) through (vii) and (ix) of Section 5.02(e) or (y) pursuant to clause (viii) of Section 5.02(e) if the proceeds are being reinvested in the existing lines of business of BRW and its Subsidiaries in accordance with such clause (viii)) or (B) any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries and not otherwise included in clause (A) above, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the amount of such Net Cash Proceeds. Each such prepayment shall be applied ratably first to the Term Facilities and to the installments thereof pro rata to the remaining installments thereof and second to the Revolving Credit Facility as set forth in clause (vi) below.
(iii) The Borrowers shall, on the date of the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt (other than Debt incurred or issued pursuant to Section 5.02(b)), prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the amount of such Net Cash Proceeds. Each such prepayment shall be applied ratably first to the Term Facilities and to the installments thereof pro rata to the remaining installments thereof and second to the Revolving Credit Facility as set forth in clause (vi) below.
(iv) The Borrowers shall, on each Business Day, prepay an aggregate principal amount of the Revolving Credit Advances comprising part of the same Borrowings, the Letter of Credit Advances and the Swing Line Advances in an amount equal to the amount by which (A) the sum of the aggregate principal amount of (x) the Revolving Credit Advances, (y) the Letter of Credit Advances and (z) the Swing Line Advances then outstanding plus the aggregate Available Amount of all Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility on such Business Day.
(v) The Borrowers shall, on each Business Day, pay to the Administrative Agent for deposit in the L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral Account to equal the amount by which the aggregate Available Amount of all Letters of Credit then outstanding exceeds the Letter of Credit Facility on such Business Day.
(vi) Prepayments of the Revolving Credit Facility made pursuant to clause (i), (ii), (iii) or (iv) above shall be first applied to prepay Letter of Credit Advances then outstanding until such Advances are paid in full, second applied to prepay Swing Line Advances then outstanding until such Advances are paid in full, third applied to prepay Revolving Credit Advances then outstanding comprising part of the same Borrowings until such Advances are paid in full and fourth deposited in the L/C Cash Collateral Account to cash collateralize 100% of the Available Amount of the Letters of Credit then outstanding. Upon the drawing of any Letter of Credit for which funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied to reimburse the relevant Issuing Bank or Revolving Credit Lenders, as applicable.
(vii) belowAll prepayments under this subsection (b) shall be made together with accrued interest to the date of such prepayment on the principal amount prepaid.
(viii) Anything contained in this Section 2.06(b) to the contrary notwithstanding, (A) if, following the occurrence of any “Asset Disposition” (as such term is defined in the Junior Notes Indenture or any comparable definition in any other Debt document to which either Borrower is a party (any “Other Debt Document”)), the issuance of equity or any other event under any Other Debt Document (a “Prepayment Event”), by any Loan Party or any of its Subsidiaries, either Borrower is required to commit by a particular date (a “Commitment Date”) to apply or cause its Subsidiaries to apply an amount equal to any of the “Net Proceeds” (as defined in the Junior Notes Indenture or any comparable definition in any Other Debt Document, as the case may be) thereof in a particular manner, or to apply by a particular date (an “Application Date”) an amount equal to any such “Net Proceeds” in a particular manner, in either case in order to excuse such Borrower from being required to make an “Asset Sale Offer” (as defined in the Junior Notes Indenture or any comparable definition in any Other Debt Document, as the case may be) or any other prepayment of such Debt under such Other Debt Document (a “Debt Prepayment”) in connection with such “Asset Sale” or other Prepayment Event, as the case may be, and such Borrower shall have failed to so commit or to so apply an amount equal to such “Net Proceeds” at least 30 days before the Commitment Date or the Application Date, as the case may be, or (B) if either Borrower at any other time shall have failed to apply or commit or cause to be applied any amount equal to any such “Net Proceeds” and , within 30 days thereafter assuming no further application or commitment of an amount equal to such “Net Proceeds” such Borrower would otherwise be required to make an “Asset Sale Offer” or Debt Prepayment, as the case may be, in respect thereof, then in either such case such Borrower shall immediately apply or cause to be applied an amount equal to such “Net Proceeds” to the payment of the Advances in the manner set forth in Section 2.06(b)(ii) in such amounts as shall excuse such Borrower from making any such “Asset Sale Offer” or Debt Prepayment, as the case may be.
Appears in 2 contracts
Sources: Credit Agreement (Broadwing Communications Inc), Credit Agreement (Broadwing Inc)
Mandatory. (i) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 7.05(b), (c), (d), (e), (f) and (g) (other than Section 7.05(g)(iii))) which results in the realization by such Person of Net Cash Proceeds (when aggregated with the Net Cash Proceeds received by all Loan Parties during such year) in excess of $250,000 in any year, the Borrower shall prepay an aggregate principal amount of Loans, Cash Collateralize Letters of Credit and Cash Collateralize the DPLC Obligations equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(ii) Upon the sale or issuance by any Loan Party or any of its Subsidiaries of any of its Equity Interests (other than Excluded Issuances and any sales or issuances of Equity Interests to another Loan Party), the Borrower shall prepay an aggregate principal amount of Loans, Cash Collateralize Letters of Credit and Cash Collateralize the DPLC Obligations equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iii) Upon the incurrence or issuance by the Borrower any Loan Party or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)7.02), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Loans, Cash Collateralize Letters of Credit and Cash Collateralize the DPLC Obligations equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower such Loan Party or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (viiviii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (i), (ii), or (iii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearthis Section 2.05(b), the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, shall prepay an aggregate principal amount of Loans, Cash Collateralize Letters of Credit and Cash Collateralize the Term Loans DPLC Obligations equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such prepayments, to the extent that Subsidiary (such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to (A) any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may, within 150 days after the receipt thereof, utilize such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (and, to the extent so utilized, shall not be required to prepay Loans as set forth in this Section 2.05(b)(iv)) and (B) any other Extraordinary Receipt, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such other Extraordinary Receipt), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may, within 150 days after the receipt thereof, utilize an amount not exceeding 66 2/3% of such Extraordinary Receipt to (x) acquire, repair or maintain fixed or capital assets or (y) acquire inventory (and, to the extent so utilized, shall not be required to prepay Loans as set forth in this Section 2.05(b)(iv)); and provided, further, however, that any cash proceeds not so applied as provided in clauses (A) and (B) above shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment made or Cash Collateral furnished pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and to the principal repayment installments thereof in inverse order of maturity and, second, to the Revolving Credit Facility and the DPLC Obligations in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) belowIf for any reason the Total Revolving Credit Outstandings denominated in Alternative Currencies at any time exceed the Alternative Currency Sublimit at such time, the Borrower shall immediately prepay Revolving Credit Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments made or Cash Collateral furnished pursuant to this Section 2.05(b) on account of the Revolving Credit Facility and/or the DPLC Obligations, first, shall be applied ratably to the L/C Borrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans, third, shall be used to Cash Collateralize the remaining L/C Obligations and, fourth, shall be used to Cash Collateralize the DPLC Obligations; and, in the case of prepayments/Cash Collateralization of the Revolving Credit Facility and DPLC Obligations, as applicable, required pursuant to clause (i), (ii), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings and Revolving Credit Loans outstanding at such time, the Cash Collateralization of the remaining L/C Obligations in full and the Cash Collateralization of the remaining DPLC Obligations in full, may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized or drawing of any letter of credit issued by Bank of America under the Reimbursement Documents, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse (x) the L/C Issuer, (y) the Revolving Credit Lenders or (z) Bank of America (in its capacity as the issuer of the letters of credit under the Reimbursement Documents), as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Albany Molecular Research Inc), Credit Agreement (Albany Molecular Research Inc)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Within five Business Days after financial statements have been delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable6.01(a) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year fiscal year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearrelated Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shallshall cause to be offered to be prepaid in accordance with clauses (b)(vi) and (ix) below, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans in an amount equal to (the “ECF Payment Amount”) (A) the Applicable ECF Percentage of such Consolidated Excess Cash Flow Flow, if any, for the fiscal year covered by such Fiscal Year less financial statements minus (B) the sum of (1) at the Borrower’s option, all voluntary prepayments prepayments, repurchases, or redemptions of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year fiscal year or after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to (x) Section 2.05(a)(v), the aggregate principal amount of Loans purchased, reduced, redeemed or retired pursuant to a “Dutch Auction” and (y) open-market purchases pursuant to Section 10.07(l), the aggregate principal amount of Loans purchased, reduced, redeemed or retired in connection with such purchase), (2) at the Borrower’s option, all voluntary prepayments, repurchases or redemptions of Revolving Credit Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, (3) at the Borrower’s option, all voluntary prepayments, repurchases or redemptions of any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g), Senior Secured Notes, Indebtedness incurred pursuant to the ABL Credit Agreement and any other Indebtedness (in the case of any such Revolving revolving credit facilities (including the ABL Credit Loans or other revolving Indebtedness prepaidAgreement), to the extent accompanied by a permanent reduction of the corresponding commitment), in each case secured by Liens on the relevant commitmentCollateral, and in repurchased or redeemed on a pro rata basis or less than pro rata basis with the case of all such prepaymentsInitial Term Loans and the, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below.Dollar Incremental Term
Appears in 2 contracts
Sources: Credit Agreement (Medline Inc.), Credit Agreement (Medline Inc.)
Mandatory. (i) Upon Within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing in respect of the incurrence financial statements required to have been delivered pursuant to Section 6.01(a) for the fiscal year ending December 31, 2018) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus, without duplication of any amount deducted from Consolidated Net Income in calculating Excess Cash Flow for such period, (B) the sum of (1) all voluntary prepayments of Term Loans made during such fiscal year pursuant to Section 2.05(a)(vi), in an amount equal to the discounted amount actually paid in cash in respect of the principal amount of such Term Loans during such fiscal year or issuance after year-end and prior to when such Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to (x) Section 2.05(a)(v), the actual purchase price paid in cash pursuant to a “Dutch Auction” and (y) open-market purchases pursuant to Section 10.07(l), the actual purchase price paid in cash pursuant to such purchase), (2) all other voluntary prepayments of Term Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent reducing scheduled repayments of principal in subsequent fiscal years, (3) all voluntary prepayments of Revolving Credit Loans, Extended Revolving Credit Loans, Refinancing Revolving Credit Loans and Incremental Revolving Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments, Extended Revolving Credit Commitments, Refinancing Revolving Credit Commitments, Revolving Commitment Increase and/or New Revolving Credit Commitments, as the case may be, are permanently reduced by the amount of such payments, (4) the amount equal to all payments in cash actually paid by the Borrower in connection with the buyback of Loans pursuant to Section 10.07(l) during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, in the case of each of the immediately preceding clauses (1), (2), (3) and (4), to the extent such prepayments are funded with Internally Generated Cash; provided that, to the extent any deduction is made pursuant to the foregoing clauses (1), (2), (3) and (4) after year-end and prior to when such Excess Cash Flow prepayment is due, such prepayment shall not be deducted with respect to the Excess Cash Flow prepayment for the succeeding fiscal year, (5) the amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with Internally Generated Cash or Borrowings under the Revolving Credit Facility), (6) the amount of Investments and acquisitions made (or committed to be made) by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with Internally Generated Cash or Borrowings under the Revolving Credit Facility), (7) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period), to the extent financed with Internally Generated Cash or Borrowings under the Revolving Credit Facility, (8) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and its Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness, in each case to the extent financed with Internally Generated Cash and (9) the amount of cash taxes (including penalties and interest or tax reserves) paid in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period; provided further that the Consolidated First Lien Net Leverage Ratio in the definition of “Applicable ECF Percentage” shall be recalculated to give pro forma effect to any amount referred to in clause (B) above that is paid or otherwise realized or accounted for after the end of the applicable fiscal year but prior to the making of the Excess Cash Flow payment required for such fiscal year. Prepayments pursuant to this Section 2.05(b)(i) shall only be required for any fiscal year if the amount of the Excess Cash Flow for such fiscal year is greater than an amount equal to the greater of $55,000,000 and 5.0% of Consolidated EBITDA for the most recently completed Test Period for which financial statements have been delivered (determined on a Pro Forma Basis in accordance with Section 1.09); provided, further, that, for the avoidance of doubt, only amounts in excess of such $55,000,000 and 5.0% of Consolidated EBITDA for the most recently completed Test Period for which financial statements have been delivered shall be prepaid pursuant to this Section 2.05(b)(i).
(ii) If (1) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets (other than any Disposition of any property or assets permitted by ▇▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) (except as set forth in the proviso thereof or to the extent such property is subject to a Mortgage), (n), (p), (q), (r) and (s)), or (2) any Casualty Event occurs, which results in the realization or receipt by the Borrower or a Restricted Subsidiary of Net Proceeds, subject to Section 2.05(b)(vi), the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of its Restricted Subsidiaries such Net Proceeds, an aggregate principal amount of Term Loans in an amount equal to the Applicable Asset Sale Percentage of all such Net Proceeds; provided, further, that if at the time that any such prepayment would be required, the Borrower is required to offer to prepay or repurchase Permitted First Priority Refinancing Debt, Incremental Equivalent Debt or Indebtedness incurred pursuant to Section 7.03(v)(i) that, in each case, is secured by a Lien on the Collateral on a pari passu basis with the Obligations, or any Permitted Refinancing of any such Indebtedness, in each case pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Disposition or Casualty Event (other than such Permitted First Priority Refinancing Debt, Incremental Equivalent Debt or Indebtedness expressly incurred pursuant to Section 7.03(v)(i) that, in each case, is secured by a Lien on the Collateral on a pari passu basis with the Obligations (or the Permitted Refinancing of any such Indebtedness) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within five Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) If Holdings or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (A) not permitted to be incurred or issued pursuant to Section 7.03 or (except B) that is intended to constitute Credit Agreement Refinancing Indebtedness))Indebtedness in respect of any Class of Term Loans, the Borrower shall prepay (or Cash Collateralize, as applicable) cause to be prepaid an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00100% of all Net Proceeds received therefrom on or prior to the gross date which is three Business Days after the receipt by Holdings or such Restricted Subsidiary of such Net Proceeds.
(iv) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans and L/C Obligations at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall promptly prepay, or cause to be promptly prepaid, Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(v) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any Excess Cash Flow attributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable material constituent documents, an amount equal to the portion of such Foreign Subsidiary Excess Cash Flow that would be so affected were the Borrower to attempt to repatriate such cash proceeds will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 so long, but only so long, as the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation, even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Foreign Subsidiary Excess Cash Flow will otherwise be subject to repayment under this Section 2.05), 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 Foreign Subsidiary Excess Cash Flow is permissible under the applicable local law or applicable material constituent documents (even if such cash is actually not repatriated), an amount equal to the amount of the Foreign Subsidiary Excess Cash Flow that could be repatriated will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of an amount equal to the additional taxes of the Borrower, its Subsidiaries and the direct and indirect holders of Equity Interests in the Borrower that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences for itself or any of its Subsidiaries, an amount equal to such Foreign Subsidiary Excess Cash Flow that would be so affected will not be subject to repayment under this Section 2.05; provided that, on or before the date on which any such Foreign Subsidiary Excess Cash Flow so retained would otherwise have been required to be applied to prepayments pursuant to this Section 2.05, the Borrower apply an amount equal to such Foreign Subsidiary Excess Cash Flow to such prepayments as if such Foreign Subsidiary Excess Cash Flow had been received by the Borrower or any of its Restricted Subsidiaries from any rather than such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Foreign Subsidiary, less the amount of additional Taxes that would have been payable or reserved against if such Foreign Subsidiary Excess Cash Flow had been repatriated (or, if less, the Foreign Subsidiary Excess Cash Flow that would be calculated if received by such prepayments (or Cash Collateralization) to be applied as set forth Foreign Subsidiary); provided, further, that in the case of each of clauses (vi) and (vii) belowii).
, such nonpayment prior to the time such amounts must be repatriated shall not constitute a Default or Event of Default (ii) In the event that (a) there and such amounts shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to available (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less first, to repay local foreign indebtedness, if any, and (B) all voluntary prepayments thereafter, for working capital purposes of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtednessthe Borrower and its Restricted Subsidiaries, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior subject to the date such Consolidated prepayment provisions in this Section 2.05(b)(v)); provided, further, that (A) for purposes of this Section 2.05, Excess Cash Flow prepayment is due shall be deemed allocable to each Foreign Subsidiary, with respect to any period, in an amount equal to (i) the Consolidated EBITDA of such Foreign Subsidiary for such period, divided by (ii) the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period (it being understood and agreed for the avoidance of doubt that such allocation shall exclude any reduction from interest and principal payments in respect of the case Obligations) and (B) the Borrower and its Restricted Subsidiaries shall be entitled to reduce Excess Cash Flow owed pursuant to Section 2.05(b)(i) in respect of any such Revolving Credit Loans or other revolving Indebtedness prepaid, Excess Cash Flow Period by the aggregate amount of Excess Cash Flow attributable to Foreign Subsidiaries subject to the extent accompanied by a permanent reduction limitations and restrictions described above in the relevant commitmentthis Section 2.05(b)(v) for such Excess Cash Flow Period.
(vi) Notwithstanding any other provisions of this Section 2.05, and in the case of all such prepayments, (i) to the extent that such prepayments are financed with internally generated cash the repatriation to the United States of any or all of the Borrower Net Proceeds of any Disposition by a Foreign Subsidiary (and not from the proceeds of Indebtedness “Foreign Disposition”) or the sale Net Proceeds of any Casualty Event incurred by a Foreign Subsidiary (“Foreign Casualty Event”) would be (x) prohibited or issuance of Equity Interests delayed by applicable local law or equity contributions(y) andrestricted by applicable material constituent documents, in the case of all such prepayments made after the end of such Fiscal Year and prior an amount equal to the date Net Proceeds that would be so affected were the Borrower to attempt to repatriate such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall cash will not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) required to be applied to repay Term Loans at the times provided in this Section 2.05 so long, but only so long, as set forth in clauses the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States (v) the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Net Proceeds will otherwise be subject to repayment under this Section 2.05), and (vii) below.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 Proceeds is permissible under the app
Appears in 2 contracts
Sources: Credit Agreement (Avantor, Inc.), Credit Agreement (Avantor, Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within five (other than Indebtedness expressly permitted to be incurred or issued 5) Business Days after financial statements have been delivered pursuant to Section 7.03 Section 6.01(a) (except Credit Agreement Refinancing Indebtedness)commencing with the fiscal year ending December 31, 2018) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay (or Cash Collateralizecause to be offered to be prepaid in accordance with clause (b)(vi) and (ix) below, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00% of (the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90“ECF Payment Amount”) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the Applicable ECF Percentage of such Consolidated Excess Cash Flow Flow, if any, for the fiscal year covered by such Fiscal Year less financial statements minus (BA) the sum of (1) all voluntary prepayments prepayments, repurchases or redemptions of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year fiscal year or after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to (x) Section 2.05(a)(v), the actual purchase price paid in cash pursuant to a “Dutch Auction” and (y) open-market purchases pursuant to Section 10.07(l), the actual purchase price paid in cash pursuant to such purchase), (1) all voluntary prepayments, repurchases or redemptions of Revolving Credit Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, (1) all voluntary prepayments, repurchases or redemptions of any Incremental Equivalent First Lien Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g) and any other Indebtedness (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidcredit facilities, to the extent accompanied by a permanent reduction of the corresponding commitment), in each case secured on a pari passu basis with the relevant commitmentInitial Term Loans, and in repurchased or redeemed on a pro rata basis or less than pro rata basis with the case of all such prepayments, Initial Term Loans (except to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of long-term funded Indebtedness (other than revolving loans)) during such fiscal year or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due, provided that (1) the amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash during such amount so deducted shall not be deducted from period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow Amount prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in any a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility), (1) the aggregate amount of all principal payments of Indebtedness of the Borrower or its Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including (A) the principal component of payments in respect of Financing Leases, (B) the amount of any scheduled repayment of Term Loans pursuant to Section 2.07, and (C) any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such amountincrease but excluding (X) all other voluntary and mandatory prepayments of Term Loans and all prepayments and repayments of Revolving Credit Loans and Swing Line Loans and (Y) all prepayments in respect of any other revolving credit facility, except in the “case of clause (Y) to the extent there is an equivalent permanent reduction in commitments thereunder to the extent financed with internally generated cash), (1) cash payments by the Borrower and its Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow Amount”prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Borrower and its Restricted Subsidiaries other than Indebtedness, to the extent financed with internally generated cash, (1) the amount of Investments and acquisitions made (or committed to be made) by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in cash pursuant to Section 7.02 (other than Section 7.02(a), (c) or (x)), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (1) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) pursuant to Section 7.06(i) (clauses (i), (ii) or (iii) only) or Section 7.06(g), to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (1) the aggregate amount of expenditures made (or committed to be made) by the Borrower and its Restricted Subsidiaries in cash during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such expenditures are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period, to the extent financed with internally generated cash, (1) the aggregate amount of any premium, make-whole or penalty payments paid (or committed to be applied paid) in cash by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such premium, make-whole or penalty payments are not actually paid as set forth committed in clauses (va subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) that are required to be made in connection with any prepayment of Indebtedness, to the extent financed with internally generated cash and (vii1) belowthe amount of cash taxes paid (or committed to be paid) in such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such taxes are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period, in the case of each of the immediately preceding clauses (1) through (11), without duplication of any deduction from Excess Cash Flow in any prior period; provided that prepayments pursuant to this Section 2.05(b)(i) shall only be required for any fiscal year if the amount of ECF Prepayment Amount for such fiscal year is greater than $25,000,000; provided, further, that, for the avoidance of doubt, only amounts in excess of such $25,000,000 shall be prepaid pursuant to this Section 2.05(b)(i).
(ii) If (x) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets (other than any Disposition of any property or assets permitted by S▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇)
Appears in 2 contracts
Sources: Credit Agreement (Alight, Inc. /DE), Credit Agreement (Alight, Inc. / Delaware)
Mandatory. (i) If any Borrower or any of their Subsidiaries Disposes of any property or assets (other than inventory in the ordinary course of business) which results in the realization by such Person of Net Cash Proceeds in excess of $500,000 in the aggregate for any Fiscal Year, the Borrowers shall prepay on or prior to the date which is five (5) Business Days after the date of such receipt, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vi) below); provided, however, that so long as no Default or Event of Default exists, Net Cash Proceeds relating to the disposition of obsolete or retired equipment in the ordinary course of a Loan Party’s (or a Loan Party’s Subsidiary’s) business shall not be included (and shall not count against the $500,000 threshold set forth above) to the extent the applicable Loan Party (or applicable Loan Party’s Subsidiary) intends to use such Net Cash Proceeds to acquire like assets useful to its business within ninety (90) days after the receipt of such Net Cash Proceeds or to reimburse itself for such a purchase occurring before receipt of such Net Cash Proceeds.
(ii) Upon the incurrence or issuance by the Borrower any Loan Party or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 7.02 (except Credit Agreement Refinancing Indebtednessincluding, without limitation, Section 7.02(h)), the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Loans equal to 100.00100% of all Net Cash Proceeds received therefrom on or prior to the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety date which is three (90) days thereof in connection therewith, within one (13) Business Day following Days after the receipt thereof by the Borrower any Loan Party or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (viivi) below).
(iiiii) In Upon the event that (a) there shall be Consolidated Excess receipt of any settlement of or payment to any Loan Party or Loan Parties with respect to any property or casualty insurance, which results in the realization by such Person or Persons of Net Cash Flow Proceeds in excess of $500,000 in the aggregate for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, Borrowers shall prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage 100% of such Consolidated Excess all Net Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured Proceeds received therefrom on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date which is three (3) Business Days after the date of receipt thereof by such Consolidated Excess Cash Flow prepayment is due Borrower or such Subsidiary (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (viivi) below); provided that with respect to any Net Cash Proceeds of an Extraordinary Receipt, at the election of the Borrowers, and so long as no Event of Default shall have occurred and be continuing, such Borrower or such Subsidiary may (A) utilize any Net Cash Proceeds constituting proceeds of casualty insurance to promptly repair or rebuild, as applicable, any property damaged to the comparable state of such property prior to the casualty event, or (B) reinvest all or any portion of such Net Cash Proceeds in fixed capital or operating assets, in each case of clause (A) or (B) so long as (x) within 180 days after receipt of such Net Cash Proceeds, such repair, rebuilding or reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (y) if a definitive agreement to so repair, rebuild or reinvest has been executed within such 180-day period, then such repair, rebuilding or reinvestment shall have been consummated within 180 days after the entering into of such definitive agreement; and provided further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(iv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrowers shall immediately prepay Revolving Credit Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess (such prepayments and/or Cash Collateralization to be applied as set forth in clause (vi) below).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) (other than clause (iv)) shall be applied, first, to the Term Loans (and, if applicable, any Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender agrees to receive less than its pro rata share of such prepayment) and second, to the Revolving Credit Facility (without permanent reduction of the Revolving Credit Commitments) in the manner set forth in clause (vi) of this Section 2.05(b). Subject to Section 2.16, such prepayments shall be paid to the Lenders pro rata in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
(vi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b) shall be applied, first, ratably to the L/C Borrowings, second, ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case) and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and the amount remaining, if any, after the prepayment in full of all L/C Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrowers for use in the ordinary course of business; provided, however, that, in the case of assets that are acquired as part of a Permitted Acquisition and subsequently sold by a Borrower or a Subsidiary within thirty (30) days after such Permitted Acquisition, if such Permitted Acquisition was financed by Revolving Loans, then the mandatory prepayments with respect to such sold assets will be applied first ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case), second, to the Term Loans (and, if applicable, any Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender agrees to receive less than its pro rata share of such prepayment) and third, to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from any Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Construction Partners, Inc.), Credit Agreement (Construction Partners, Inc.)
Mandatory. (i) Upon If for any reason the incurrence or issuance by Total Outstandings at any time exceed the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Revolving Credit Agreement Refinancing Indebtedness))Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (or Cash Collateralizeother than the L/C Borrowings), as applicable) , in an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below)excess.
(ii) In the event that (a) there shall Amounts to be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and applied as provided in this clause (b) there to the prepayment of the Revolving Credit Loans shall be applied first to reduce outstanding Base Rate Loans. Any amounts remaining after each such application shall be applied to prepay Eurodollar Rate Loans, in accordance with Sections 8.02 and 8.03.
(iii) Notwithstanding anything to the contrary set forth herein, if a Public Equity Offering Transaction has not occurred prior to the last Business Day of a calendar quarter in any Fiscal Year, beginning with the last Business Day of the second calendar quarter of Fiscal Year 2018 and on the last Business Day of each calendar quarter thereafter until the occurrence of a Public Equity Offering Transaction, (x) the Borrowers shall repay the Revolving Credit Loans in an amount equal to $2,500,000 per quarter (the “Required Quarterly RL Payment”) (and if no Revolving Credit Loans are any Term Loans outstanding at the end time of such Fiscal YearRequired Quarterly RL Payment, the Borrower Borrowers shall: first, no later than one-hundred-twenty-five (125) days after repay the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Swing Line Loans, loans under any Incremental Equivalent Debtsecond, Revolving Credit Loans and/or loans under repay the L/C Borrowings, and third, Cash Collateralize the L/C Obligations (other Indebtednessthan the L/C Borrowings), if any, in each case, secured on a pari passu basis with in an amount not to exceed the Liens securing lesser of (xA) the Obligations hereunder, in each case, made during such Fiscal Year or after the end aggregate amount of such Fiscal Year Swing Line Loans, L/C Borrowings or L/C Obligations outstanding at the time of such Required Quarterly RL Payment and prior to (B) the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributionsRequired Quarterly RL Payment) and, (y) the Required Quarterly RL Payment on the last Business Day of each calendar quarter commencing on September 30, 2017, and, pursuant to Section 2.06(b)(i), the Revolving Credit Commitment shall be concurrently reduced on the last Business Day of each calendar quarter in the case of all such prepayments made after the end of such Fiscal Year and prior an amount equal to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowRequired Quarterly RL Payment.
Appears in 2 contracts
Sources: Credit Agreement (NOODLES & Co), Securities Purchase Agreement (NOODLES & Co)
Mandatory. (i) For any Excess Cash Flow Period, within ten (10) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrower shall prepay an aggregate principal amount of the Term Loans in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for such Excess Cash Flow Period, minus (B) the sum of:
(1) the aggregate amount of voluntary principal prepayments of the Loans or Indebtedness that is pari passu in right of payment and security with the Initial Term Loans, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment, and prepayments in connection with the lender replacement provisions (including pursuant to Section 3.08)) (except prepayments of Loans under any Revolving Tranche or other revolving Indebtedness that is pari passu in right of payment and security with the Revolving Credit Commitments that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness, and
(2) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii) or (ix),
(3) the portion of the Excess Cash Flow applied (to the extent Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase Indebtedness that is pari passu in right of payment and security with the Initial Term Loans (to the extent the documentation governing such Indebtedness requires such a prepayment or repurchase thereof with Excess Cash Flow, in each case in an amount not to exceed the product of (x) the amount of Excess Cash Flow and (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and all such other Indebtedness), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(4) the amount of capital expenditures made in cash by Borrower or any of its Restricted Subsidiaries during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period and in each case other than to the extent that any such capital expenditures are funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(5) the aggregate amount of cash consideration paid by Borrower or any Restricted Subsidiary (on a consolidated basis) in connection with any Investments (including, without limitation, any acquisitions and acquisitions of intellectual property) during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period and in each case other than to the extent that any such cash consideration is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(6) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Section 2.05(b)(i)(B)(6) in respect of prior fiscal years, the aggregate consideration required to be paid in cash by Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such fiscal year relating to Investments (including, without limitation, any acquisitions and acquisitions of intellectual property) or made pursuant to Section 7.05 or capital expenditures to be consummated or made during the period of four consecutive fiscal quarters of the Borrowers following the end of such fiscal year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and capital expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters; provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was equal to or less than 4.50 to 1.00 or 4.00 to 1.00, respectively (the amount described in this clause (i), the “ECF Prepayment Amount”); provided further that no prepayment shall be required with respect to any Excess Cash Flow Period unless the ECF Prepayment Amount exceeds $5,000,000, and, in such case, the ECF Prepayment Amount shall be the amount in excess thereof; provided further that, if the First Lien Net Leverage Ratio on a Pro Forma Basis after giving effect to any Excess Cash Flow prepayment would result in the percentage in respect of the applicable Excess Cash Flow Period being reduced to 25% or 0%, then such reduced percentage applicable to the Excess Cash Flow prepayment required to be made shall apply.
(ii) If any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) results in the receipt by the Borrower or any Restricted Subsidiary of any Net Cash Proceeds (a “Relevant Transaction”), then, except to the extent the Borrower elects to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrower shall prepay, subject to Section 2.05(b)(viii), an aggregate principal amount of Term Loans in an amount equal to 100% (as may be adjusted pursuant to the proviso below) of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof (or within 15 Business Days after the later of the date the threshold referred to above is first exceeded and the date the relevant Net Cash Proceeds are received) by the Borrower or such Restricted Subsidiary; provided (i) that such percentage in respect of any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) shall be reduced to 50% or 0% if the First Lien Net Leverage Ratio as of the last day of the most recently ended fiscal quarter as to which financial statements have been delivered to the Administrative Agent was equal to or less than 4.50 to 1.00 or 4.00 to 1.00, respectively, (ii) that no prepayment shall be required with respect to any Asset Sale or Casualty Event for such period that is equal to or less than $5,000,000 or (iii) that the Borrower may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness that is secured by the Collateral on a pari passu basis with Liens securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I)..
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries Subsidiary of any Refinancing Notes, any Specified Refinancing Term Loans or any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.01, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loan Tranches in an amount equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(iiiv) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below[Reserved.]
Appears in 2 contracts
Sources: Credit Agreement (KLDiscovery Inc.), Credit Agreement (KLDiscovery Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Within 5 Business Days after financial statements have been delivered pursuant to Section 7.03 6.01(a) (except Credit Agreement Refinancing Indebtedness)commencing with the fiscal year ending December 31, 2021) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay cause to be offered to be prepaid in accordance with clause (or Cash Collateralizeb)(vi) and (ix) below, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00% of (the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90“ECF Payment Amount”) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such Consolidated financial statements minus (B) the sum of (1) at the Borrower’s option, all voluntary prepayments, repurchases or redemptions of Term Loans made during such fiscal year or after year-end and prior to when such Excess Cash Flow for such Fiscal Year less prepayment is due (Bincluding, without limitation, in the case of Term Loans prepaid pursuant to (x) Section 2.05(a)(v) or Section 3.07, in each case, in an amount equal to the principal amount or face value of the Indebtedness so prepaid or purchased pursuant to a “Dutch Auction” and (y) other transactions pursuant to Section 10.07(l), in each case, in an amount equal to the principal amount or face value of the Indebtedness so prepaid or purchased), (2) at the Borrower’s option, all voluntary prepayments prepayments, repurchases or redemptions of Term LoansRevolving Credit Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, loans under (3) at the Borrower’s option, all voluntary prepayments, repurchases or redemptions of any Incremental Equivalent First Lien Debt, Revolving Credit Loans and/or loans under other Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g) and any other Indebtedness (in the case of any revolving credit facilities, to the extent accompanied by a permanent reduction of the corresponding commitment) in each case, secured on a pari passu basis with or junior basis to the Liens securing the Obligations hereunderInitial Term Loans, in each case, made in an amount equal to the principal amount or face value of the Indebtedness so prepaid or purchased (except to the extent financed with proceeds of long-term funded Indebtedness (other than revolving loans)) during such Fiscal Year fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, (4) the end amount of Capital Expenditures or acquisitions of IP Rights to the extent not expensed and Capitalized Software Expenditures accrued or made (or committed to be made) in cash during such Fiscal Year period or, at the option of the Borrower, made after such period and prior to the date such Consolidated the Excess Cash Flow prepayment is due (it being understood that to the extent such Capital Expenditures or acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period, to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility), (5) the aggregate amount of all principal payments of Indebtedness of the Borrower or the Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including (A) the principal component of payments in respect of Financing Leases, (B) the amount of any scheduled repayment of Term Loans pursuant to Section 2.07, and (C) any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but excluding (X) all other voluntary and mandatory prepayments of Term Loans and all prepayments and repayments of Revolving Credit Loans and Swing Line Loans and (Y) all prepayments in respect of any other revolving credit facility, except in the case of any clause (Y) to the extent there is an equivalent permanent reduction in commitments thereunder to the extent financed with internally generated cash), (6) cash payments by the Borrower and the Restricted Subsidiaries made (or committed to be made) during such Revolving Credit Loans or period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other revolving Indebtedness prepaidthan Indebtedness, to the extent accompanied financed with internally generated cash, (7) the amount of Investments and acquisitions made (or committed to be made) by the Borrower and the Restricted Subsidiaries during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such Investments and acquisitions are not actually made as committed in a permanent reduction subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in cash pursuant to Section 7.02 (other than Section 7.02(a), (c) or (x)), to the relevant commitmentextent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (8) the amount of Restricted Payments paid in cash (or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) to the case extent financed with internally generated cash or Borrowings under the Revolving Credit Facility, (9) the aggregate amount of all expenditures made (or committed to be made) by the Borrower and its Restricted Subsidiaries in cash during such prepaymentsperiod or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such expenditures are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including expenditures for the payment of financing fees) to the extent that such prepayments expenditures are not expensed during such period, to the extent financed with internally generated cash, (10) the aggregate amount of any premium, make-whole or penalty payments paid (or committed to be paid) in cash by the Borrower and its Restricted Subsidiaries during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such premium, make-whole or penalty payments are not actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) that are required to be made in connection with any prepayment of Indebtedness, to the extent financed with internally generated cash and (11) the amount of cash taxes paid (or committed to be paid) in such period or, at the option of the Borrower Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (and it being understood that to the extent such taxes are not from actually paid as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) to the proceeds extent they exceed the amount of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andtax expense deducted in determining Consolidated Net Income for such period, in the case of all such prepayments made after each of the end immediately preceding clauses (1) through (11), without duplication of such Fiscal Year and prior to the date such Consolidated any deduction from Excess Cash Flow prepayment is due, in any prior period; provided that prepayments pursuant to this Section 2.05(b)(i) shall only be required for any fiscal year if the amount of ECF Payment Amount for such amount so deducted fiscal year is greater than the greater of (A) $17,000,000 and (B) 25% of LTM Consolidated EBITDA at the time of such prepayment; provided, further, that, for the avoidance of doubt, only amounts in excess of the greater of (A) $17,000,000 and (B) 25% of LTM Consolidated EBITDA at the time of such prepayment shall not be deducted from the Excess Cash Flow Amount in prepaid pursuant to this Section 2.05(b)(i); provided, further, that any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as amounts set forth in clauses (v1) through (11) above may be applied to any subsequent fiscal year(s) to the extent the aggregate of such amounts exceeds the amount required to reduce to zero, with respect to any given fiscal year, the Excess Cash Flow prepayment otherwise required above (including after giving effect to the “de minimis” thresholds in the two immediately preceding provisos above and carry-forwards of any such excess amounts from prior years) for such fiscal year; provided further that, if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Incremental Equivalent First Lien Debt, Credit Agreement Refinancing Indebtedness, Indebtedness incurred pursuant to Section 7.03(q) or Section 7.03(w), incurred Indebtedness under Section 7.03(g) or any other Indebtedness outstanding at such time that, in each case, is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Initial Term Loans pursuant to the terms of the documentation governing such Indebtedness with all or a portion of the Excess Cash Flow, then the Borrower may apply the ECF Payment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and such other Indebtedness at such time) to the prepayment of the Term Loans and such other Indebtedness; provided further that (A) the portion of the ECF Payment Amounts allocated to such other Indebtedness shall not exceed the amount of ECF Payment Amounts required to be allocated to such other Indebtedness pursuant to the terms thereof, and the remaining amount of such ECF Payment Amount shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and (viiB) belowto the extent the holders of such Indebtedness decline to have such Indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
Appears in 2 contracts
Sources: Credit Agreement (Legence Corp.), Credit Agreement (Legence Corp.)
Mandatory. (i) Immediately upon receipt thereof, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds received by the Borrower or any of its Subsidiaries from the Disposition of any property other than (A) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business; (B) Dispositions of inventory in the ordinary course of business; (C) Dispositions of equipment or real property to the extent that such property is exchanged for credit against the purchase price of similar replacement property or the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; (D) Dispositions of property to the Borrower or to a wholly-owned Subsidiary; and (E) Dispositions that do not exceed $25,000,000 of Net Cash Proceeds in the aggregate prior to the Maturity Date.
(ii) Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Equity Interests (other than to the Borrower or to a wholly-owned Subsidiary), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary.
(iii) Immediately upon receipt thereof, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of (A) the amount of increases in the aggregate commitments for revolving credit loans to the Borrower or its Subsidiaries (whether as an increase in the aggregate commitments under its existing Amended and Restated Credit Agreement dated July 20, 2007, under any amendment or restatement thereof or under any new revolving credit agreements or a combination thereof) above the amount of such commitments on the Closing Date and (B) all Net Cash Proceeds received by the Borrower or its Subsidiaries from the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (for borrowed money, other than (I) borrowings of revolving credit loans and (II) Indebtedness expressly permitted in respect of Capitalized Leases or purchase money obligations for fixed or capital assets.
(iv) Notwithstanding the provisions of clause (i) of this Section 2.06(b), so long as no Default under Section 8.01(j), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be incurred or issued made pursuant to clause (i) of this Section 7.03 2.06(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $5,000,000, the Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (except Credit Agreement Refinancing Indebtednessi) of this Section 2.06(b) to be applied to prepay Loans exceeds $5,000,000. Upon the occurrence of a Default under Section 8.01(j)), or an Event of Default during any such deferral period, the Borrower shall immediately prepay (or Cash Collateralize, as applicable) an aggregate principal the Loans in the amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other feesamounts, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewithas applicable, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) that are required to be applied as set forth in clauses to prepay Loans under clause (vi) and of this Section 2.06(b) (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior without giving effect to the date such Consolidated Excess Cash Flow prepayment is due first and second sentences of this clause (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and iv)) but which have not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount previously been so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowapplied.
Appears in 2 contracts
Sources: 364 Day Term Loan Agreement (Energy Transfer Partners, L.P.), 364 Day Term Loan Agreement (Energy Transfer Equity, L.P.)
Mandatory. (i) Upon Within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the incurrence related Compliance Certificate has been delivered pursuant to Section 6.02(a) (commencing with the fiscal year ending December 31, 2021), subject to Section 2.05(b)(v), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period covered by such financial statements minus, without duplication of any amount deducted from Consolidated Net Income in calculating Excess Cash Flow for such Excess Cash Flow Period, (B) the sum of (1) all voluntary prepayments of Term Loans made during such Excess Cash Flow Period pursuant to Section 2.05(a)(v), in an amount equal to the discounted amount actually paid in cash in respect of the principal amount of such Term Loans during such Excess Cash Flow Period or issuance after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all other optional redemptions or voluntary prepayments of Term Loans and any other Pari Passu Secured Obligations, during such Excess Cash Flow Period or after year-end and prior to when such Excess Cash Flow prepayment is due, (3) all voluntary prepayments of Revolving Loans, Extended Revolving Loans and Refinancing Revolving Loans during such Excess Cash Flow Period or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments, Extended Revolving Credit Commitments, and/or Refinancing Revolving Credit Commitments, as the case may be, are permanently reduced by the amount of such payments and (4) the amount equal to all payments in cash paid by the Borrowers or any Subsidiary in connection with the buyback of Loans pursuant to Section 10.07(l), in the case of each of the immediately preceding clauses (1), (2), (3) and (4), to the extent such prepayments are not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness) of the Borrower and its Restricted Subsidiaries; provided that, to the extent any deduction is made pursuant to the foregoing clauses (1), (2), (3) and (4) after year-end and prior to when such Excess Cash Flow prepayment is due, such prepayment shall not be deducted with respect to the Excess Cash Flow prepayment for the succeeding Excess Cash Flow Period; provided, however, the Borrowers shall not be obligated to make any prepayment otherwise required by this Section 2.05(b)(i) unless and until the aggregate amount of such prepayment for such Excess Cash Flow Period exceeds $1,000,000 for such Excess Cash Flow Period (and only amounts in excess of $1,000,000 for such Excess Cash Flow Period shall be required to be prepaid); provided further that if at the time that any such prepayment would be required, the Borrowers are required to offer to repurchase Other Applicable Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the Excess Cash Flow, then the Borrowers may apply such Excess Cash Flow on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided further that the portion of such Excess Cash Flow allocated to the Other Applicable Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly.
(ii) If (1) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets pursuant to Sections 7.05(j), (k) or (m) (solely to the extent set forth in the proviso thereof)), or (2) any Casualty Event occurs, which results in the receipt by the Borrower or any Restricted Subsidiary of Net Proceeds, subject to Section 2.05(b)(vi), the Borrowers shall cause to be prepaid on or prior to the date which is 10 Business Days after the date of the receipt by the Borrower or any Restricted Subsidiary of such Net Proceeds (or if the Borrower or any Restricted Subsidiary intends to reinvest such Net Proceeds within the Reinvestment Period or has entered into a binding commitment or binding letter of intent prior to the last day of the Reinvestment Period to reinvest, the last day of such Reinvestment Period), an aggregate principal amount of Term Loans in an amount equal to 100% of all such Net Proceeds; provided that, if the Borrower or its Restricted Subsidiaries use any portion of such proceeds to acquire, maintain, develop, construct, improve, upgrade or repair assets used or useful in the business of the Borrower or its Restricted Subsidiaries or to make Permitted Acquisitions or any acquisition permitted hereunder (or any subsequent investment made in a Person, division or line of business previously acquired) capital expenditure or capitalized software expenditures, in each case within 12 months of such receipt (or credited against any such usage consummated no more than 18 months prior to the applicable disposition), such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (or so credited with respect to any prior usage) (it being understood that if any portion of such proceeds are not so used within such 12-month period but within such 12-month period are contractually committed to be used, then upon the termination of such contract or if such Net Proceeds are not so used (or so credited with respect to any prior usage) within 18 months of such receipt, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso (such period, the “Reinvestment Period”)); provided, further, that (x) no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless (y) such Net Proceeds, after giving effect to the reinvestment rights set forth herein, exceeds $2,500,000 and (z) the aggregate Net Proceeds, after giving effect to the reinvestment rights set forth herein, exceeds $5,000,000 in any fiscal year (and thereafter only Net Proceeds in excess of such individual and annual amounts shall constitute Net Proceeds under this clause (ii)). If at the time that any such prepayment would be required, the Borrowers are required to offer to repurchase Other Applicable Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds of such Disposition or Casualty Event, then the Borrowers may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided further that the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly.
(iii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness expressly A) not permitted to be incurred or issued pursuant to Section 7.03 or (except B) that is intended to constitute Replacement Term Loans or Credit Agreement Refinancing Indebtedness))Indebtedness in respect of any Class of Terms Loans, Revolving Loans or Revolving Credit Commitments, the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) cause to be prepaid an aggregate principal amount of Pro Rata Obligations such Term Loans (or, in the case of Credit Agreement Refinancing Indebtedness in respect of Revolving Loans or Revolving Credit Commitments, prepay such Revolving Loans and terminate such Revolving Credit Commitments) in an amount equal to 100.00100% of all Net Proceeds received therefrom on or prior to the gross cash proceeds received by date which is five Business Days after the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, Subsidiary of such Net Proceeds plus any additional premium (such prepayments (or Cash Collateralizationif any) owing pursuant to be applied as set forth in clauses (v) and (vii) belowSection 2.05(d).
(iiiv) In If for any reason the event aggregate Outstanding Amount of Revolving Loans and L/C Obligations at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrowers shall within two Business Days after receipt of written notice from the Revolving Agent or becoming aware of such excess prepay the Revolving Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) unless, after the prepayment in full of the Revolving Loans, such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(av) there shall be Consolidated Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any Excess Cash Flow for any Fiscal Year attributable to Foreign Subsidiaries (commencing with “Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable local law (including as a result of financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on upstreaming of cash intra group and the Fiscal Year ending December 31fiduciary and statutory duties of the directors of the relevant Subsidiaries) or (y) restricted by applicable material constituent documents or other material agreements (but solely to the extent such material agreements are not prohibited pursuant to Section 7.09), 2022) and (b) there are any Term Loans outstanding at an amount equal to the end portion of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Foreign Subsidiary Excess Cash Flow that would be so affected were the Borrowers to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 if the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States and (ii) to the extent that the Borrower has determined in good faith that repatriation of any Foreign Subsidiary Excess Cash Flow could reasonably be expected to result in a tax liability (including any withholding tax) or otherwise result in adverse Tax cost consequences for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other IndebtednessHoldings, in each case, secured other than a de minimis amount (as determined in good faith by the Borrower), the Borrower or any Subsidiary (including, for the avoidance of doubt, but not limited to, any Tax liability pursuant to Section 956 of the Code or a withholding Tax), an amount equal to such Foreign Subsidiary Excess Cash Flow that would be so affected will not be subject to repayment under this Section 2.05 and such amounts shall be available for general corporate purposes of the Loan Parties and their Subsidiaries as long as not required to be prepaid in accordance with this Section 2.05; provided that (A) for purposes of this Section 2.05, Excess Cash Flow shall be deemed allocable to each Foreign Subsidiary, with respect to any Excess Cash Flow Period, in an amount equal to (i) the Consolidated EBITDA of such Foreign Subsidiary for such Excess Cash Flow Period, divided by (ii) the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period (it being understood and agreed for the avoidance of doubt that such allocation shall exclude any reduction from interest and principal payments in respect of the Obligations) and (B) the Borrower and its Restricted Subsidiaries shall be entitled to reduce Excess Cash Flow owed to the Lenders pursuant to Section 2.05(b)(i) in respect of any Excess Cash Flow Period by the aggregate amount of Excess Cash Flow attributable to Foreign Subsidiaries subject to the limitations and restrictions described above in this Section 2.05(b)(v) for such Excess Cash Flow Period. For the avoidance of doubt, nothing in this Section 2.05 shall require the Borrowers to cause any amounts to be repatriated to the United States (whether or not such amounts are used in or excluded from the determination of the amount of any mandatory prepayments hereunder).
(vi) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any or all of the Net Proceeds of any Disposition by a Foreign Subsidiary (“Foreign Disposition”) or the Net Proceeds of any Casualty Event incurred by a Foreign Subsidiary (“Foreign Casualty Event”) would be (x) prohibited or delayed by applicable local law (including as a result of financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of the relevant Subsidiaries) or (y) restricted by applicable material constituent documents or other material agreements (but solely to the extent such material agreements are not prohibited pursuant to Section 7.09), an amount equal to the Net Proceeds that would be so affected were the Borrowers to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 if the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition or Foreign Casualty Event could reasonably be expected to result in a pari passu basis with the Liens securing the Obligations hereundertax liability (including any withholding tax)(other than a de minimis tax liability) or otherwise result in adverse Tax cost consequences for Holdings, in each case, made during other than a de minimis amount (as determined in good faith by the Borrower) (including, for the avoidance of doubt, but not limited to, any Tax liability pursuant to Section 956 of the Code or a withholding Tax), the Borrower or any Restricted Subsidiary with respect to such Fiscal Year or after Net Proceeds, an amount equal to such Net Proceeds that would be so affected will not be subject to repayment under this Section 2.05 and such amounts shall be available for general corporate purposes of the end Loan Parties and their Subsidiaries as long as not required to be prepaid in accordance with this Section 2.05. For the avoidance of such Fiscal Year and prior doubt, nothing in this Section 2.05 shall require the Borrowers to cause any amounts to be repatriated to the date United States (whether or not such Consolidated Excess Cash Flow prepayment is due (amounts are used in or excluded from the case determination of the amount of any such Revolving Credit mandatory prepayments hereunder).
(vii) Except as otherwise provided in any Refinancing Amendment, Extension Amendment or any Incremental Amendment or as otherwise provided herein, (A) each prepayment of Term Loans or other revolving Indebtedness prepaid, pursuant to the extent accompanied by a permanent reduction in the relevant commitment, and in the case this Section 2.05(b) shall be applied ratably to each Class of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, Term Loans then outstanding; provided that such amount so deducted (x) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in solely to each applicable Class of Refinanced Debt and (y) any prepayment of Term Loans with the Net Cash Proceeds of Replacement Term Loans shall be applied solely to each applicable Class of Refinanced Term Loans; (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (vi), (ii) and (viiiii) belowof this Section 2.05(b) shall be applied to the scheduled installments of principal thereof pursuant to Section 2.07(a) in a manner directed by the Borrower and specified in the notice of prepayment (and absent such direction, in direct order of maturity) and (C) each such prepayment shall be paid to the Lenders of each Class in accordance with their respective Pro Rata Shares of such prepayment.
(viii) The Borrower shall notify the Administrat
Appears in 2 contracts
Sources: Credit Agreement (AEVEX Corp.), Credit Agreement (AEVEX Corp.)
Mandatory. (i) Upon If at any time the incurrence or issuance by Outstanding Amount exceeds the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Borrowing Base as reflected in the Borrowing Base Certificate most recently delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness6.02(e)), within 10 Business Days after delivery of such Borrowing Base Certificate, the Borrower shall prepay either (x) make additional Intercompany Secured Loans to Subsidiary Guarantors, and the Subsidiary Guarantors shall pledge additional Loan Receivables to the Borrower as collateral, in an amount sufficient to increase the Borrowing Base to an amount not less than the Outstanding Amount or Cash Collateralize, (y) permanently repay outstanding Loans (in any Series of Loans as applicabledirected by the Borrower) in an aggregate amount equal to such excess. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued and unpaid interest on the principal repaid together with any additional amounts required pursuant to Section 3.05.
(i) Promptly following (A) the repayment of any Intercompany Secured Loan, if as a result of such repayment the Outstanding Amount exceeds the Borrowing Base as reflected in the Borrowing Base Certificate most recently delivered pursuant to Section 6.02(e) or (B) any time at which the Outstanding Amount exceeds the then outstanding aggregate amount of Pro Rata Obligations Intercompany Secured Loans plus Unrestricted Cash held by the Borrower (in an amount not to exceed $500,000,000) then, within 10 Business Days after such repayment the Borrower shall either (x) make additional Intercompany Secured Loans to Subsidiary Guarantors with the proceeds of such repayment, and the Subsidiary Guarantors shall pledge additional Loan Receivables to the Borrower as collateral, in an amount sufficient to increase the Borrowing Base to an amount not less than the Outstanding Amount; or (y) to the extent such proceeds are not utilized in accordance with the foregoing clause (x), permanently repay outstanding Loans (in any Series of Loans as directed by the Borrower) in an aggregate amount equal to 100.00such excess. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued and unpaid interest on the principal repaid together with any additional amounts required pursuant to Section 3.05. Notwithstanding the foregoing, (x) each prepayment of Initial Loans pursuant to this Section 2.03(b)(ii) that is made on or prior to the first anniversary of the Closing Date shall be accompanied by a premium payable by the Borrower to the ratable account of the Lenders equal to 2.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Initial Loans equal so prepaid and (y) each prepayment of Initial Loans pursuant to (Athis Section 2.03(b)(ii) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured that is made on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in second anniversary of the case Closing Date but following the first anniversary of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent Closing Date shall be accompanied by a permanent reduction in premium payable by the relevant commitment, and in the case of all such prepayments, Borrower to the extent that such prepayments are financed with internally generated cash ratable account of the Borrower (and not from Lenders equal to 1.00% of the proceeds principal amount of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount Initial Loans so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowprepaid.
Appears in 2 contracts
Sources: Credit Agreement (Springleaf Finance Corp), Credit Agreement (Springleaf Finance Inc)
Mandatory. (i) Upon Commencing with the incurrence fiscal year ended December 31, 2022, within five (5) Business Days after the applicable Compliance Certificate for such fiscal year has been delivered pursuant to Section 6.02(a) (such date, the “ECF Payment Date”), the Borrowers shall, subject to clause (b)(vii) of this Section 2.05, cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus (B) the sum of (1) all voluntary prepayments or issuance repurchases in cash of (x) Term Loans or Incremental Equivalent Debt secured by any Applicable Lien or other Indebtedness constituting First Lien Obligations (other than Indebtedness described in clause (2)), or (y) any refinancing, replacement or extension of any of the foregoing (in each case, including any debt buyback conducted pursuant to a Dutch auction or open market purchase), in each case, during such fiscal year (to the extent not deducted from Excess Cash Flow in any prior period or pursuant to this clause (B) in the prior year) or after such fiscal year-end and prior to the ECF Payment Date (limited in the case of any voluntary prepayments made pursuant to Section 2.05(a)(v) or Section 10.07(l), and in the case of repurchases of Indebtedness made at a discount to par, to the discounted amount actually paid in cash in respect of the principal amount of Term Loans or other Indebtedness (as opposed to the face amount so prepaid or repurchased)), (2) all voluntary prepayments of ABL Revolving Loans, Revolving Credit Loans and other revolving loans constituting First Lien Obligations during such fiscal year (to the extent not deducted from Excess Cash Flow in any prior period or this clause (B) in the prior year) or after year-end and prior to the ECF Payment Date, to the extent the ABL Revolving Credit Commitments, the Revolving Credit Commitments or revolving commitments in respect of such other revolving loans, as the case may be, are permanently reduced by the amount of such payments, (3) the amount of Investments (other than Investments in the Borrowers or any of its Restricted Subsidiaries) made in cash during such period, and including, in each case, the payment of any related earnout or similar payment related to any such Investment during such fiscal year (to the extent not deducted from Excess Cash Flow in any prior period or this clause (B) in the prior year) or after year-end and prior to the ECF Payment Date and (4) the amount of Restricted Payments (other than Restricted Payments made in reliance on Section 7.06(a) and 7.06(b)(xviii)) paid in cash during such period to any Person that is not the Parent Borrower or a Restricted Subsidiary (including, in each case, the payment of any related earnout or similar payment related to any such Restricted Investment) during such fiscal year (to the extent not deducted from Excess Cash Flow in any prior period or this clause (B) in the prior year) or after year-end and prior to the ECF Payment Date and, in the case of each of the immediately preceding clauses (B)(1) through (B)(4), except to the extent such payments are funded with the proceeds of long-term Indebtedness (other than revolving Indebtedness) of a Borrower or any of its Restricted Subsidiaries Subsidiaries; provided that a prepayment of Term Loans pursuant to this Section 2.05(b)(i) in respect of any Indebtedness fiscal year shall only be required in the amount (other than Indebtedness expressly permitted if any) by which aggregate amount that would otherwise be due for such fiscal year exceeds $15,000,000; provided, further, that to the extent the sum of the amounts specified in clause (B) exceed the prepayments required to be incurred or issued made pursuant to Section 7.03 clause (except Credit Agreement Refinancing Indebtedness)A), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal full amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, excess shall carry over and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount required payments in any subsequent period) (years until such amount, the “Excess Cash Flow Amount”) to be applied time as set forth in clauses (v) and (vii) belowno excess remains.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below.
(iii) (x) If the Borrower or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 7.05 (except pursuant to Sections 7.05(j) or 7.05(k)), but including pursuant to any sale-leaseback transaction permitted by Section 7.15 (other than any sale-leaseback transaction entered into in connection with a Permitted Acquisition) which results in the realization by such Person of Net Cash Proceeds in excess of $10,000,000 per Fiscal Year in any single transaction or related series of transactions, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of such Net Cash Proceeds in excess of such $10,000,000 per Fiscal Year no later than fifteen (15) Business Days following receipt thereof by such Person (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below); provided that so long as no Event of Default shall have occurred and be continuing, such prepayment (or Cash Collateralization) shall not be required to the extent the Borrower reinvests such Net Cash Proceeds in assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries within fifteen (15) months after the date of receipt of such Net Cash Proceeds, or enters into a binding commitment thereof within such 15-month period and subsequently makes such reinvestment within 6 months after the end of such 15-month period; provided that the Borrower notifies the Administrative Agent within fifteen (15) Business Days following receipt by the Borrower or any of its Restricted Subsidiaries of such Net Cash Proceeds of the Borrower’s intent to reinvest such Net Cash Proceeds.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Restricted Subsidiaries, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of all Net Cash Proceeds received therefrom in excess of $5,000,000 per Fiscal Year in the aggregate no later than five (5) Business Days following receipt thereof by such Person (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below); provided that so long as no Event of Default shall have occurred and be continuing, such prepayment (or Cash Collateralization) shall not be required to the extent the Borrower reinvests such Net Cash Proceeds in assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries within 12 months after the date of receipt of such Net Cash Proceeds, or enters into a binding commitment thereof within such 12-month period and subsequently makes such reinvestment within 6 months after the end of such 12-month period; provided that the Borrower notifies the Administrative Agent within five (5) Business Days following receipt by the Borrower or any of its Restricted Subsidiaries of such Net Cash Proceeds of the Borrower’s intent to reinvest such Net Cash Proceeds.
(v) Subject to the next sentence, each prepayment (or Cash Collateralization, as applicable) of Pro Rata Obligations pursuant to this Section 2.05(b) shall be applied, first, to the Term Loans held by all Term Lenders in accordance with their Applicable Percentages (allocated pro rata as among the Term Loans and to each Term Lender on a pro rata basis in accordance with the principal amount of the applicable Term Loans held thereby and to scheduled amortization payments in direct order of maturity), second, any excess after the application of such proceeds in accordance with clause first above, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b) and third, any excess after the application of such proceeds in accordance with clauses first and second above may be retained by the Borrower. Except with respect to Term Loans incurred in connection with any Refinancing Amendment or any Joinder Agreement (which, in each case, may be prepaid on a less than pro rata basis if expressly provided for in such Refinancing Amendment or Joinder Agreement), each prepayment pursuant to this Section 2.05(b) shall be applied ratably to each Class of Loans then outstanding entitled to payment pursuant to the prior sentence (provided that (i) any prepayment of Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt and (ii) any Class of Incremental Term Loans or Refinancing Term Loans may specify that one or more other Classes of Term Loans may be prepaid prior to such Class of Incremental Term Loans or Refinancing Term Loans). Any prepayment of a Loan pursuant to this Section 2.05(b) shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceeds the Revolving Credit Commitments at such time (including, for the avoidance of doubt, as a result of the termination of any Class of Commitments on the Maturity Date with respect thereto), the Borrower shall immediately prepay Revolving Credit Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) (in an aggregate amount equal to 103.00% of the face amount thereof) in an aggregate amount sufficient to reduce the Total Revolving Credit Outstandings to the aggregate Revolving Credit Commitments. If for any reason the Outstanding Amount of L/C Obligations at any time exceed the Letter of Credit Sublimit at such time, the Borrower shall immediately prepay L/C Borrowings and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce the Outstanding Amount of L/C Obligations to the Letter of Credit Sublimit.
(vii) Prepayments of the Revolving Credit Facilities made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans held by all Revolving Credit Lenders in accordance with their Applicable Revolving Credit Percentages, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable. Prepayments of the Revolving Credit Facilities made pursuant to this Section 2.05(b) shall be applied ratably to the outstanding Revolving Credit Loans. Amounts to be applied pursuant to this Section 2.05(b) to the mandatory prepayment of Term Loans and Revolving Credit Loans shall be applied, as applicable, first to reduce outstanding Base Rate Loans and any amounts remaining after such application shall be applied to prepay Eurodollar Rate Loans and Term Benchmark Loans.
(viii) Each Term Lender may elect, by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m., New York time, two (2) Business Days after the date of such ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender., prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.05(b)(ii), Section 2.05(b)(iii) or Section 2.05(b)(iv), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”). If a Lender fails to deliver a Rejection Notice declining receipt of its Applicable Percentage of such mandatory prepayment to the Administrative Agent within the time frame specified above, any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans.
Appears in 2 contracts
Sources: Libor Hardwire Transition Amendment (Yesway, Inc.), Libor Hardwire Transition Amendment (Yesway, Inc.)
Mandatory. (i) Upon In the incurrence event of any termination of any Tranche of Revolving Credit Commitments, the Borrowers shall, on the date of such termination, repay or issuance prepay all outstanding Revolving Credit Loans of such Tranche and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Outstanding Amount of Revolving Credit Loans of any Tranche of Revolving Credit Commitments at any time exceeds the amount of Revolving Credit Commitments of such Tranche then in effect, the Borrowers shall immediately prepay all outstanding Revolving Credit Loans of such Tranche and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless, after the prepayment in full of the Revolving Credit Loans of the applicable Tranche, the Total Outstandings exceeds the Total Revolving Credit Commitments then in effect. Mandatory prepayments of any Tranche of Revolving Credit Loans shall be made on a pro rata basis among the outstanding Revolving Credit Loans of such Tranche.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale or Permitted Sale Leaseback Transaction and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom by any Loan Party or any Restricted Subsidiary, ESI shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vi) provided that such prepayment shall only be required under this clause (ii) if the net amount required to be prepaid in any fiscal year is greater than or equal to $25,000,000. For the avoidance of doubt, no prepayments shall be required in connection with the Arysta Sale at any time before or after the Closing Date.
(iii) In the event that any Borrower or any of its Restricted Subsidiaries Subsidiary shall receive Net Cash Proceeds from the issuance or incurrence of any Indebtedness (other than Indebtedness expressly of any Borrower or any Restricted Subsidiary, in each case, that is not permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))8.02, the Borrower shall prepay Borrowers shall, substantially simultaneously with (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of and in any event not later than the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) fifth Business Day following next following) the receipt thereof of such Net Cash Proceeds by the such Borrower or such Restricted Subsidiary, (apply an amount equal to the Required Prepayment Percentage of such prepayments (or Net Cash Collateralization) Proceeds to be applied as set forth prepay outstanding Loans and/or Cash Collateralize Letters of Credit in clauses (v) and (vii) belowaccordance with Section 2.05(b)(vi).
(iiiv) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing Commencing with the Fiscal Year fiscal year ending on December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall2019, no later than one-hundred-twenty-five (125) 90 days after the end of such Fiscal Yeareach fiscal year of ESI, the Borrowers shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vi), in an aggregate principal amount of the Term Loans equal to (A) the ECF Required Prepayment Percentage of such Consolidated Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such Fiscal Year less fiscal year; provided that such prepayment shall only be required under this clause (Biv) all voluntary prepayments if the net amount required to be prepaid in any fiscal year is greater than or equal to $25,000,000.
(v) ESI shall deliver to the Administrative Agent, at the time of Term Loanseach prepayment required under this Section 2.05(b), loans under (i) a certificate signed by a Responsible Officer of the Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three Business Days prior written notice of any Incremental Equivalent Debtprepayment pursuant to Section 2.05(b)(i) and at least ten Business Days prior written notice of any prepayment pursuant to Section 2.05(b)(ii), Revolving Credit Loans and/or loans under other Indebtedness(iii) or (iv) (and, in each case, secured the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall be substantially in the form of Exhibit I and shall specify the prepayment date, the Class, Tranche and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vi) Mandatory prepayments under Sections 2.05(b)(ii), (iii) and (iv) shall be applied: first, to prepay outstanding Term Loans on a pari passu pro rata basis (in accordance with the Liens securing respective outstanding principal amounts thereof) to the Obligations hereunderfull extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Credit Loans on a pro rata basis among the relevant Tranches of Revolving Credit Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Credit Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 103% of the aggregate undrawn face amount of all such Letters of Credit) as described in each caseSection 2.03(g), made during with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrowers to be used in accordance with the provisions of this Agreement.
(vii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such Fiscal Year outstanding Term Loans are Base Rate Loans, RFR Loans, EURIBO Rate Loans or after Term SOFR Loans; provided that if no Lenders decline a given mandatory prepayment of the end Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow mandatory prepayment is due (shall be applied in the case of any the applicable principal amount of such Revolving Credit Tranche of the Term Loans being so prepaid, first to Term Loans that are Base Rate Loans to the full extent thereof before application to Term Loans that are EURIBO Rate Loans, Term SOFR Loans or other revolving Indebtedness prepaidRFR Loans in a manner that minimizes the amount of any payments required to be made by the Borrowers pursuant to Section 3.05. For the avoidance of doubt, the 2023 Incremental Tranche A Term Loans shall participate in such mandatory prepayments on a pro rata basis with the Tranche B-1 Term Loans (based on the principal amount of 2023 Incremental Tranche A Term Loans and the Tranche B-1 Term Loans outstanding on such date of prepayment). Notwithstanding anything herein to the extent accompanied contrary, any Term Loan Lender may elect, by a permanent reduction in the relevant commitment, and in the case of all such prepayments, notice to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and Administrative Agent by facsimile at least eight Business Days prior to the date applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to Section 2.05(b)(ii), (iii) or (iv), in which case the aggregate amount of the prepayment that would have been applied to prepay such Consolidated Excess Cash Flow prepayment is due, provided that such amount Term Loans but was so deducted declined shall not be deducted from retained by the Excess Cash Flow Amount in any subsequent period) Borrowers (such amountretained amounts, the “Excess Cash Flow AmountRetained Declined Proceeds”) to be applied as set forth used in clauses (v) and (vii) belowaccordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc)
Mandatory. (i) Upon The Borrowers shall, on the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day 130th day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such each Fiscal Year, if the Borrower shall, no later than one-hundred-twenty-five (125) days after Leverage Ratio for the end Measurement Period ending on the last day of such Fiscal YearYear exceeds 4.00:1.00, prepay an aggregate principal amount of the Term Loans Advances comprising part of the same Borrowings in an amount equal to the remainder of (A) 50% of the ECF Percentage amount of such Consolidated Excess Cash Flow for such Fiscal Year less MINUS (B) all voluntary the aggregate amount of any optional prepayments of Term LoansAdvances or, loans under any Incremental Equivalent Debt, to the extent such prepayments permanently reduced the Revolving Credit Loans and/or loans under other IndebtednessFacility, in each casethe amount of any optional prepayments of Revolving Credit Advances, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, Swing Line Advances or Letter of Credit Advances made during such Fiscal Year or after the end of Year. Each such Fiscal Year and prior prepayment shall, except as otherwise provided in Section 2.06(c) below, be applied FIRST to the date such Consolidated Excess Cash Flow prepayment is due (Term A Facility and/or the Term B Facility and to the installments thereof in the case of any such manner specified by the Appropriate Borrower (but pro rata among the Term A Lenders and/or the Term B Lenders which are not Declining Lenders) and SECOND to the Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied Facility as set forth in clauses clause (v) below.
(ii) The Borrowers shall, on the date of receipt of the Net Cash Proceeds by any Loan Party or any of its Restricted Subsidiaries from the sale, lease, transfer or other disposition of any assets of any Loan Party or any of its Restricted Subsidiaries, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings equal to the amount of such Net Cash Proceeds. Each such prepayment shall, except as otherwise provided in Section 2.06(c) below, be applied FIRST ratably to the Term A Facility and the Term B Facility and to the next two installments thereof and SECOND ratably to the Term A Facility and the Term B Facility and pro rata to the remaining installments thereof, and THIRD to the Revolving Credit Facility as set forth in clause (viiv) below.
Appears in 1 contract
Sources: Credit Agreement (Accuride Corp)
Mandatory. (i) Upon If at any time the incurrence or issuance by sum of the Borrower or any Loan Balance and the L/C Exposure exceeds the lesser of its Restricted Subsidiaries of any Indebtedness (A) the aggregate Commitments and (B) the Borrowing Base then in effect (other than Indebtedness expressly permitted due to be incurred a monthly reduction of the Borrowing Base as provided for in Section 2.10(b) or issued an optional reduction in the Commitments pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)2.12), the Borrower shall prepay Borrowers shall, within 10 days of notice from the Agent of such occurrence, (or Cash Collateralize, as applicablex) repay the Lenders an aggregate principal amount equal to the amount of Pro Rata Obligations such excess, including any unpaid accrued interest on the amount prepaid, (y) indicate its election to pay the Lenders an amount equal to 100.00% the amount of such excess, including any unpaid accrued interest on the amount to be prepaid, in six equal consecutive monthly installments with the first such installment being due and payable at the end of the gross cash proceeds received calendar month in which such election is made, which payments shall be in addition to other principal payments due under this Agreement, or (z) provide additional Collateral, of character and value satisfactory to the Lenders in their sole discretion, to secure the amount of such excess by the Borrower or any execution and delivery to the Lenders of its Restricted Subsidiaries from any such Indebtedness less all reasonable Security Instruments in form and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated substance satisfactory to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below)Lenders.
(ii) If at any time the sum of the Loan Balance and the L/C Exposure exceeds the lesser of (A) aggregate Commitments and (B) the Borrowing Base, due to a monthly reduction of the Borrowing Base as provided for in Section 2.10(b) or due to an optional reduction in the Commitments pursuant to Section 2.12, the Borrowers shall immediately repay the Lenders an amount equal to the amount of such excess.
(iii) In the event that (a) there shall a mandatory prepayment is required under this Section and the Loan Balance is less than the amount required to be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearprepaid, the Borrower shallBorrowers shall repay the entire Loan Balance and deposit into the Cash Collateral Account, no later than one-hundred-twenty-five (125) days after as additional collateral securing the end of such Fiscal YearObligations, prepay an aggregate principal amount of the Term Loans cash, in immediately available funds, equal to the L/C Exposure minus the lesser of (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less aggregate Commitments and (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowBorrowing Base.
Appears in 1 contract
Mandatory. (i) Upon the incurrence or issuance by the Borrower If Holdings or any of its Restricted Subsidiaries (x) Disposes of any Indebtedness property (other than Indebtedness expressly than, so long as any Australian Dollar Term A Loans are then outstanding, any real property located US-DOCS\70212156.13 in Australia, or any Disposition of any property permitted to be incurred or issued by Section 7.05 (except pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness7.05(j), Section 7.05(k) or Section 7.05(l))) which results in the realization by such Person of Net Cash Proceeds in excess of an aggregate amount of $12,000,000 per Fiscal Year, the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00100% of such Net Cash Proceeds in excess of such $12,000,000 no later than the gross cash proceeds received by the Borrower or any later of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90a) days thereof in connection therewith, within one five (15) Business Day Days following receipt thereof by such Person and (b) five (5) Business Days after such $12,000,000 threshold is reached in such Fiscal Year or (y) Disposes of any real property located in Australia, the Australian Borrower or shall prepay an aggregate principal amount of Australian Dollar Term A Loans equal to 100% of the Net Cash Proceeds of such Restricted Subsidiary, Disposition (in each case such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year2017), the Borrower Borrowers shall, no later than one-hundred-twenty-five ninety (12590) days after the end of such Fiscal Year, prepay (or Cash Collateralize, as applicable) an aggregate principal amount of the Term Loans Pro Rata Obligations equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments an amount equal to the aggregate principal amount of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with voluntarily prepaid by the Liens securing the Obligations hereunder, in each case, made Borrowers during such Fiscal Year or after the end of such Fiscal Year and prior pursuant to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed Section 2.05(a) with internally generated cash of the Borrower Holdings (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent periodInterests) (such amount, the “Excess Cash Flow Amount”, to be applied as set forth in paragraphs (v) and (vii) below).
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03) the Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100% of all Net Cash Proceeds received therefrom on the day of receipt thereof by Holdings or such Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of Holdings or any of its Subsidiaries and not otherwise included in paragraph (i), (ii) or (iii) of this Section 2.05(b), the Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100% of all Net Cash Proceeds received therefrom in excess of $10,000,000 per Fiscal Year no later than the later of (a) five (5) Business Days following receipt thereof by such Person and (b) five (5) Business Days after such $10,000,000 threshold is reached in such Fiscal Year (such prepayments (or Cash Collateralization) to be applied as set forth in paragraphs (v) and (vii) below).
(v) Each prepayment (or Cash Collateralization, as applicable) of Pro Rata Obligations pursuant to this Section 2.05(b) shall be applied, first, ratably to the Term A Loans held by all Term Lenders in accordance with their Applicable Percentages (allocated to the next four principal repayment installments thereof in direct order of maturity and, thereafter, on a pro rata basis to the remaining principal repayment installments thereof and the repayment at the final maturity thereof), second, any excess after the application of such proceeds in accordance with clause first above, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b) and third, any excess after the application of such proceeds in accordance with clauses first and second above may be retained by the Borrowers. Any prepayment of a Loan pursuant to this Section 2.05(b) shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each prepayment pursuant to US-DOCS\70212156.13
Appears in 1 contract
Sources: Credit Agreement (ACCO BRANDS Corp)
Mandatory. (i) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(ii) Upon the incurrence occurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)7.02), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Loans equal to 100.00100% of the gross all net cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary.
(iii) If the Borrower or any of its Subsidiaries receives any condemnation proceeds or insurance proceeds (other than business interruption insurance proceeds) on account of any Collateral Loss in excess of $2,000,000, (such prepayments then the Borrower shall, promptly upon receipt thereof, apply (or cause the applicable Subsidiary to apply) such proceeds first, as a mandatory prepayment of the then outstanding Revolving Credit Loans, second, if an Event of Default is continuing, to Cash CollateralizationCollateralize the then Outstanding Amount of all L/C Obligations in an amount equal to 100% of the amount thereof, and third, any remaining amounts may be retained by the Borrower or the applicable Subsidiary; provided, however, that if no Event of Default is continuing, the Borrower or the applicable Subsidiary may, at its election, within 12 months after the receipt of such proceeds, replace or repair the equipment, fixed assets or real property in respect of which such proceeds were received; and provided, further, that any cash proceeds not so applied within such 12 month period shall be immediately applied to the prepayment of the Revolving Credit Loans (if any are then outstanding) to be applied as set forth in clauses (v) and (vii) belowthis Section 2.05(b)(iii).
(iiiv) In the event that (a) there Any mandatory prepayments hereunder shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in all accrued interest on the relevant commitment, and in the case of all such prepayments, amount prepaid together with any additional amounts required pursuant to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowSection 3.05.
Appears in 1 contract
Mandatory. (i) For any Excess Cash Flow Period, within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrower shall prepay an aggregate principal amount of the Loans for which the Borrower is responsible in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for such Excess Cash Flow Period, minus (B) the sum of (without duplication):
(1) the aggregate amount of voluntary principal prepayments of the Loans or Indebtedness that is pari passu in right of payment and security with the Loans, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment, and prepayments in connection with the lender replacement provisions (including pursuant to Section 3.08)) or any permanent commitment reductions of any of the foregoing, in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(2) the aggregate amount of voluntary principal prepayments of the First Lien Loans or Indebtedness that is pari passu in right of payment and security with the First Lien Loans, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment, and prepayments in connection with the lender replacement provisions) (except prepayments of First Lien Loans under any revolving tranche or other revolving Indebtedness that is pari passu in right of payment and security with the First Lien Loans that are not accompanied by a corresponding permanent commitment reduction of the applicable revolving commitments) or any permanent commitment reductions of any of the foregoing, in each case other than to the extent that any such prepayment is funded with the proceeds of Second Lien Credit Agreement Refinancing Indebtedness or any other long-term Indebtedness,
(3) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii) or (ix),
(4) the portion of the Excess Cash Flow applied (to the extent Intermediate Holdings or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase Indebtedness that is pari passu in right of payment and security with the Loans (in each case, to the extent the documentation governing such Indebtedness requires such a prepayment or repurchase thereof with Excess Cash Flow, in each case in an amount not to exceed the product of (x) the amount of Excess Cash Flow and (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Loans and all such other Indebtedness), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(5) the amount of capital expenditures either made in cash by Intermediate Holdings or any Restricted Subsidiaries during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period and in each case other than to the extent that any such capital expenditures are funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(6) the aggregate amount of cash consideration paid by Intermediate Holdings or any Restricted Subsidiary (on a consolidated basis) in connection with any Investments (including, without limitation, any acquisitions, acquisitions of intellectual property and any deferred payments in connection with the Acquisition) during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period and in each case other than to the extent that any such cash consideration is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(7) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Section 2.05(b)(i)(B)(7) in respect of prior fiscal years, the aggregate consideration required to be paid in cash by Intermediate Holdings or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such fiscal year relating to Investments (including, without limitation, any acquisitions, acquisitions of intellectual property and any deferred payments in connection with the Acquisition) or made pursuant to Section 7.05 or capital expenditures to be consummated or made during the period of four consecutive fiscal quarters of Intermediate Holdings following the end of such fiscal year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and capital expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters; provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was equal to or less than 4.40:1.00 or 3.90:1.00, respectively (the amount described in this clause (i), the “ECF Prepayment Amount”); provided, further that no prepayment shall be required with respect to any Excess Cash Flow Period unless the ECF Prepayment Amount exceeds the greater of $5,000,000 and 7.5% of Four Quarter Consolidated EBITDA and, in such case, the ECF Prepayment Amount shall be the amount in excess thereof; provided, further that, if the Consolidated First Lien Net Leverage Ratio on a Pro Forma Basis after giving effect to any Excess Cash Flow prepayment would result in the percentage in respect of the applicable Excess Cash Flow Period being reduced to 25% or 0%, then such reduced percentage applicable to the Excess Cash Flow prepayment required to be made shall apply; provided, further, that until the Discharge of Senior Obligations has occurred, no mandatory prepayments of Loans shall be required under this Section 2.05(b)(i) except to the extent of mandatory prepayments pursuant to Section 2.05(b)(i) of the First Lien Credit Agreement declined by the lenders thereunder.
(ii) If any Asset Sale by any Loan Party or Casualty Event affecting any assets or property of any Loan Party (or series of related Asset Sales or Casualty Events) results in the receipt by any Loan Party of aggregate Net Cash Proceeds in excess of the greater of $10,000,000 and 14.75% of Four Quarter Consolidated EBITDA (“Relevant Transaction”), then, except to the extent the Borrower elects to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrower shall prepay, subject to Section 2.05(b)(viii), an aggregate principal amount of Loans in an amount equal to 100% (as may be adjusted pursuant to the second proviso below) of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof (or within 15 Business Days after the later of the date the threshold referred to above is first exceeded and the date the relevant Net Cash Proceeds are received) by such Loan Party; provided that the Borrower may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness that is pari passu in right of payment and security with the First Lien Obligations or the Initial Loans, in each case, to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I); provided, further, that only the amount of Net Cash Proceeds in excess of the greater of $10,000,000 and 14.75% of Four Quarter Consolidated EBITDA for any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) shall be subject to prepayment pursuant to this Section 2.05(b)(ii) and, in such case, the required prepayment shall be only the amount in excess thereof; provided, further, that until the Discharge of Senior Obligations has occurred, no mandatory prepayments of Loans shall be required under this Section 2.05(b)(ii), pursuant to the terms hereof and Section 7.04, except to the extent of mandatory prepayments pursuant to Section 2.05(b)(ii) of the First Lien Credit Agreement declined by the lenders thereunder.
(iii) Upon the incurrence or issuance by the Borrower Intermediate Holdings or any of its Restricted Subsidiaries Subsidiary of any Refinancing Notes, any Specified Refinancing Loans or any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.01, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans Tranches in an amount equal to (A) 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by Intermediate Holdings or such Restricted Subsidiary; provided that until the ECF Percentage Discharge of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary Senior Obligations has occurred, no mandatory prepayments of Term Loans with the Net Cash Proceeds of Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.01 shall be required under this Section 2.05(b)(iii) except to the extent of mandatory prepayments pursuant to Section 2.05(b)(iii) of the First Lien Credit Agreement declined by the lenders thereunder.
(iv) [Reserved].
(v) [Reserved].
(vi) Subject to Section 2.17, each prepayment of Loans pursuant to this Section 2.05(b) shall be applied to each Tranche on a pro rata basis (or, if agreed to in writing by the Majority Lenders of a Tranche, in a manner that provides for more favorable prepayment treatment of other Tranches, 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 (x) Loans with the proceeds of Indebtedness incurred pursuant to Section 2.18, which shall be applied to the Tranche being refinanced pursuant thereto or (y) Loans with the proceeds of any Refinancing Notes issued to the extent permitted under Section 7.01(a), which shall be applied to the Tranche being refinanced pursuant thereto). Amounts to be applied to a Tranche in connection with prepayments made pursuant to this Section 2.05(b) shall be applied to interest on each such Tranche on a pro rata basis that is accrued and payable at such time and thereafter to the remaining scheduled installments with respect to such Tranche in direct order of maturity. Each prepayment of Loans under a Facility pursuant to this Section 2.05(b) shall be applied on a pro rata basis to the then outstanding Base Rate Loans and Eurocurrency Rate Loans under such Facility; provided that, if there are no Declining Lenders with respect to such prepayment, then the amount thereof shall be applied first to Base Rate Loans under such Facility to the full extent thereof before application to Eurocurrency Rate Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on case in a pari passu basis with manner that minimizes the Liens securing amount payable by the Obligations hereunder, Borrower in each case, made during such Fiscal Year or after the end respect of such Fiscal Year and prior prepayment pursuant to the date such Consolidated Excess Cash Flow prepayment is due Section 3.06.
(vii) All prepayments under this Section 2.05 shall be made together with, in the case of any such Revolving Credit Loans or prepayment of a Eurocurrency Rate Loan on a date other revolving Indebtedness prepaidthan the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section 3.06 and, to the extent accompanied applicable, any additional amounts required pursuant to Section 2.05(a)(iii). Notwithstanding any of the other provisions of this Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Rate Loans is required to be made under this Section 2.05(b), other than on the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a cash collateral account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by a permanent reduction or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b) (it being agreed, for clarity, that interest shall continue to accrue on the relevant commitmentLoans so prepaid until the amount so deposited is actually applied to prepay such Loans). Upon the occurrence and during the continuance of any Event of Default, and the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in the case accordance with this Section 2.05(b).
(viii) Notwithstanding any other provisions of all such prepaymentsthis Section 2.05, to the extent that such prepayments are financed with internally generated cash any or all of the Borrower Net Cash Proceeds of any Asset Sale by a Non-U.S. Subsidiary (and not from the proceeds or a U.S Subsidiary of Indebtedness a Non-U.S. Subsidiary) (a “Foreign Disposition”) or the sale Net Cash Proceeds of any Casualty Event from a Non-U.S. Subsidiary (or issuance a U.S. Subsidiary of Equity Interests or equity contributionsa Non-U.S. Subsidiary) and(a “Foreign Casualty Event”), in the each case of all such prepayments made after the end of such Fiscal Year and prior giving rise to the date such Consolidated a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) are or is dueprohibited, provided that restricted or delayed by applicable local law, rule or regulation (including, without limitation, financial assistance and corporate benefit restrictions and fiduciary and statutory duties of any director or officer of such amount Subsidiaries) from being repatriated to the Borrower or so deducted shall not be deducted from prepaid or such repatriation or prepayment would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officer), the portion of such Net Cash Proceeds or Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) so affected will not be required to be applied as set forth to repay Loans at the times provided in clauses this Section 2.05 but may be retained by the applicable Non-U.S. Subsidiary.
(vix) and (vii) below.Notwithstanding any other provisions of this Section 2.05, to the extent that the Borrower has determined in good faith that repatriation of any or all of the Net Cash Proceeds of any Foreign Disposition or any Foreign Casualty Event, in each case giving rise to a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash
Appears in 1 contract
Sources: Second Lien Credit Agreement
Mandatory. (i) Upon the incurrence or issuance by the Borrower If, at any time, any Loan Party or any of its Restricted Subsidiaries of shall receive Net Cash Proceeds from (x) any Indebtedness Asset Sale (other than Indebtedness expressly permitted any Asset Sale resulting from a Permitted Factoring Transaction or the Irish Transaction) or (y) any Recovery Event and, unless and to the extent that a Reinvestment Notice shall be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))delivered in respect thereof, the Term Loan Borrower shall shall, within five Business Days after the date of the receipt of such Net Cash Proceeds by such Loan Party or any of its Subsidiaries prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations outstanding Term Advances equal to 100.00100% of such Net Cash Proceeds; provided, that, notwithstanding the gross cash proceeds received by foregoing, on each Reinvestment Prepayment Date, an amount equal to the Borrower Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Advances.
(i) [Reserved.]
(ii) If, at any time, any Loan Party or any of its Restricted Subsidiaries shall receive Net Cash Proceeds from the issuance or incurrence of any such Indebtedness less all reasonable and customary out-of-pocket legalDebt (other than any Debt permitted under Section 5.02(b) (other than any Refinancing Debt), underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewiththe Term Loan Borrower shall, within one (1) Business Day following after the date of receipt thereof of such Net Cash Proceeds by such Loan Party or any of its Subsidiaries, prepay the Borrower or Term Advances in an amount equal to 100% of such Restricted Subsidiary, (such prepayments (or Net Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below)Proceeds.[Reserved.]
(iiiii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing Commencing with the Fiscal Year ending December 31, 20222019, not later than five Business Days after the earlier of (i) the date on which ▇▇▇▇ is required to deliver financial statements with respect of each Fiscal Year under Section 5.03(c) for such Fiscal Year and (bii) there the date on which such financial statements are any Term Loans outstanding at the end of such Fiscal Yearactually delivered, the Term Loan Borrower shall, no later than one-hundred-twenty-five (125) days after shall prepay the end of such Fiscal Year, prepay 2018 New Term B Advances in an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage times the amount of such Consolidated Excess Cash Flow for such Fiscal Year less minus (B) all the amount of any voluntary prepayments prepayments, repurchases or redemptions of Term Loans, loans under any Incremental Equivalent principal during such Fiscal Year (in each case to the extent not financed with the proceeds of Funded Debt, Revolving Credit Loans and/or loans under other Indebtedness), in each case, not previously deducted pursuant to this clause (B) in any prior period of (I) Term Advances (provided that with respect to any prepayment of Term Advances below the par value thereof, the aggregate amount of such prepayment for purposes of this clause (B) shall be the amount of the Term Loan Borrower’s actual cash payment in respect of such prepayment) and (II) any other Debt permitted hereunder that is secured by the Collateral on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidDebt, solely to the extent accompanied by permanent commitment reductions); provided that prepayment shall only be required pursuant to this Section 2.06(b)(iii) for any Fiscal Year if the amount calculated pursuant to clause (A) above exceeds $10,000,000 (and then only to the extent of such excess).[Reserved.]
(iv) If on any date, as a permanent reduction result of fluctuations in exchange rates (which shall be calculated by the relevant commitmentAdministrative Agent on each Revaluation Date) or otherwise, the Administrative Agent notifies ▇▇▇▇ that, (A) the sum of (x) the aggregate principal amount of the Revolving Credit Advances, Unreimbursed Amounts, the Letter of Credit Advances and the Swing Line Advances then outstanding plus (y) the aggregate Available Amount of all Letters of Credit then outstanding (in each case determined by the Equivalent thereof in Dollars in the case of all any Advance or Letter of Credit denominated in a Committed Currency) exceeds (B) 105% of the aggregate Revolving Credit Commitments on such prepaymentsdate, the Revolving Credit Borrowers shall, as soon as practicable and in any event within three Business Days after receipt of such notice, prepay (with no corresponding commitment reduction) an aggregate principal amount of the Revolving Credit Advances comprising part of the same Borrowings, Unreimbursed Amounts, the Letter of Credit Advances and the Swing Line Advances (and/or deposit cash collateral in respect of Letters of Credit then outstanding) in an amount sufficient to reduce such sum to an amount not to exceed 100% of the aggregate Revolving Credit Commitments on such date.
(v) The Revolving Credit Borrowers shall, on each Business Day, pay to the extent that Administrative Agent for deposit in the L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in such prepayments are financed with internally generated cash L/C Cash Collateral Account to equal the amount by which the aggregate Available Amount of all Letters of Credit (determined by the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, Equivalent thereof in Dollars in the case of all any Letter of Credit denominated in a Committed Currency) then outstanding exceeds the Letter of Credit Sublimit on such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowBusiness Day.
Appears in 1 contract
Mandatory. (i) Upon Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing with the incurrence fiscal year ended December 31, 2015) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall, subject to clause (b)(vii) of this Section 2.05, cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period then ended minus (B) the sum of (1) all voluntary prepayments of (x) Term B Loans and (y) Term Loans that are not Term B Loans, Incremental Equivalent Debt and Refinancing Equivalent Debt (in each case secured by the Collateral on a first lien basis) during such Excess Cash Flow Period or issuance after the end of such Excess Cash Flow Period and prior to when such Excess Cash Flow prepayment is due (limited in the case of any voluntary prepayments made pursuant to Section 2.05(a)(v) to the discounted amount actually paid in respect of the principal amount of such Term Loans (as opposed to the face amount so prepaid)), (2) all voluntary prepayments of Revolving Credit Loans during such Excess Cash Flow Period or after the end of such Excess Cash Flow Period and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments and (3) all voluntary prepayments of Second Lien Term Loans, Second Lien Incremental Equivalent Debt and Second Lien Refinancing Equivalent Debt during such Excess Cash Flow Period or after the end of such Excess Cash Flow Period and prior to when such Excess Cash Flow prepayment is due and, in the case of each of the immediately preceding clauses (1), (2) and (3) to the extent such prepayments are funded with Internally Generated Cash.
(ii) If (1) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d), (e), (g), (h), (i), (k), (l), (m), (n), (o), (p), (q), (s) or (t) (provided, that, in the case of Section 7.05(t), immediately after giving effect to such Sale Leaseback and the application of the proceeds (if any) therefrom, (A) no Event of Default shall have occurred and be continuing and (B) the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 6.50:1.00) or (2) any Casualty Event occurs, which results in the realization or receipt by the Borrower or Restricted Subsidiary of Net Proceeds, the Borrower shall cause to be prepaid on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of its such Net Proceeds, subject to clause (b)(vii) of this Section 2.05, an aggregate principal amount of Term Loans in an amount equal to 100% of all such Net Proceeds received; provided that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiaries Subsidiary) is required to offer to repurchase Permitted Pari Passu Secured Refinancing Debt (or any Permitted Refinancing thereof that is secured on a pari passu basis with the Obligations under Term Loans and Revolving Credit Loans required to be secured on a first lien basis) pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Disposition or Casualty Event (such Permitted Pari Passu Secured Refinancing Debt (or Permitted Refinancing thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness (other than Indebtedness expressly after the Closing Date not permitted to be incurred or issued pursuant to Section 7.03 7.03, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (except Credit Agreement 5) Business Days after the receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds.
(iv) If the Borrower incurs or issues any Refinancing Indebtedness)Loans (or Refinancing Equivalent Debt) resulting in Net Proceeds (as opposed to such Refinancing Loans or Refinancing Equivalent Debt arising out of an exchange of existing Term Loans for such Refinancing Loans or Refinancing Equivalent Debt), the Borrower shall prepay (or Cash Collateralize, as applicable) cause to be prepaid an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00100% of all Net Proceeds received therefrom on or prior to the gross cash proceeds received date which is five (5) Business Days after the receipt by the Borrower of such Net Proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(v) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(vi) Each prepayment of Term Loans pursuant to Section 2.05(b) (A) shall be applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by the Borrower in the notice delivered pursuant to clause (vii) below, to any Class or Classes of Term Loans with a Maturity Date preceding the Maturity Date of the remaining Classes of Term Loans then outstanding, (B) shall be applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the Borrower in the applicable notice and, if not specified, in direct order of maturity to repayments thereof required pursuant to Section 2.07(a) and (C) shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to clause (vii) of this Section 2.05(b). Notwithstanding clause (A) above, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this clause (vi) solely to those applicable Classes of Term Loans selected by the Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt or Refinanced Term Loans) and (2) any Incremental Amendment, Refinancing Amendment or Extension Amendment may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by the Borrower pursuant to clauses (i) through (iv) of this Section 2.05(b) at least two (2) Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made by the Borrower. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Restricted Subsidiaries from Pro Rata Share of any mandatory prepayment (such Indebtedness less all reasonable and customary out-of-pocket legaldeclined amounts, underwriting and other fees, costs and expenses incurred or reasonably anticipated the “Declined Proceeds”) of Term Loans required to be incurred within ninety made pursuant to clauses (90i), (ii) days thereof in connection therewithand (iii) of this Section 2.05(b) by providing written notice (each, within a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day following after the date of such Lender’s receipt thereof of notice from the Administrative Agent regarding such prepayment. 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 Term Lender fails to deliver a Rejection Notice to the Borrower Administrative Agent within the time frame specified above or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) Rejection Notice fails to be applied as set forth in clauses (v) and (vii) below).
(ii) In specify the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) be rejected, any such failure will be deemed an acceptance of the ECF Percentage total amount of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments mandatory prepayment of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured . Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pari passu pro rata basis in accordance with the Liens securing amounts of the Obligations hereunder, in each case, made during such Fiscal Year or after the end Term Loans of such Fiscal Year and prior Lender (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, time and in the case manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of all such prepaymentsDeclined Proceeds, any Declined Proceeds remaining thereafter shall, after application towards any mandatory prepayment of Second Lien Term Loans, be retained by the Borrower (such remaining Declined Proceeds, the “Borrower Retained Prepayment Amounts”).
(viii) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that such prepayments are financed with internally generated cash any of or all the Borrower Net Proceeds of any Disposition by a Foreign Subsidiary (and not “Foreign Disposition”), the Net Proceeds of any Casualty Event from the proceeds of Indebtedness a Foreign Subsidiary (a “Foreign Casualty Event”) or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is dueattributable to Foreign Subsidiaries are prohibited or delayed by applicable local law from being repatriated to the United States, provided that the portion of such amount so deducted shall not be deducted from the Net Proceeds or Excess Cash Flow Amount so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any subsequent period) (of such amount, the “affected Net Proceeds or Excess Cash Flow Amount”is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Proceeds or Excess Cash Flow will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition or any Foreign Casualty Event or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences (as determined in good faith by the Borrower) with respect to such Net Proceeds or Excess Cash Flow, such Net Proceeds or Excess Cash Flow so affected will not be required to be applied as set forth to repay Term Loans at the times provided in clauses (vthis Section 2.05(b) and (vii) belowbut may be retained by the applicable Foreign Subsidiary.
Appears in 1 contract
Mandatory. (i) If at any time any Loan Party or any of its Subsidiaries shall receive Net Cash Proceeds from (x) any Asset Sale (other than any Asset Sale resulting from a Permitted Factoring Transaction), (y) any Asset Disposition other than the Irish Transaction or (z) any Recovery Event, the Borrower shall, within five Business Days after the date of the receipt of such Net Cash Proceeds by such Loan Party or any of its Subsidiaries prepay an aggregate principal amount of outstanding Advances equal to 100% of such Net Cash Proceeds and, if no Advance is outstanding or if any such Net Cash Proceeds remain after such prepayment of outstanding Advances, the Commitments shall be automatically and permanently reduced by the amount of the Net Cash Proceeds or such remaining Net Cash Proceeds, as applicable; provided that (A) prepayments and/or the reduction of Commitments, as applicable, pursuant to Section 2.06(b)(i)(x) shall only be required with Net Cash Proceeds from Asset Sales occurring on or after the Closing Date in excess of $100,000,000 in the aggregate and (B) prepayments and/or the reduction of Commitments, as applicable, pursuant to Section 2.06(b)(i)(y) shall only be required with Net Cash Proceeds from Asset Dispositions (other than Asset Sales) occurring on or after the Closing Date in excess of $100,000,000 in the aggregate.
(ii) If at any time any Loan Party or any of its Domestic Subsidiaries shall receive Net Cash Proceeds from the issuance or incurrence of any Debt as defined in clause (a) or (c) of the definition thereof (other than any Borrowing under the Revolving Credit Facility (each as defined in the Existing Credit Agreement)), the Borrower shall, within one Business Day after the date of receipt of such Net Cash Proceeds by such Loan Party or any of its Domestic Subsidiaries, prepay the Advances in an amount equal to 100% of such Net Cash Proceeds. In the event that the amount of such Net Cash Proceeds exceeds the aggregate principal amount of outstanding Advances, if any, the Commitments shall be automatically and permanently reduced by the amount of such excess.
(iii) Upon the incurrence sale or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Capital Stock and, without duplication of clause (ii) above, any convertible security (other than Indebtedness expressly permitted an issuance of shares of Capital Stock upon the exercise of warrants, options or other rights for the purchase of such Capital Stock and any sales or issuances of Capital Stock to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)another Loan Party), the Borrower shall prepay (or Cash Collateralize, as applicable) the Advances in an aggregate principal amount of Pro Rata Obligations equal to 100.00% the excess (such excess being the “Net Equity Proceeds”) of (x) the sum of the gross cash proceeds and Cash Equivalents received by in connection with such sale or issuance over (y) the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all underwriting discounts and commissions, and other reasonable and customary out-of-pocket legalexpenses, underwriting and other fees, costs and expenses incurred by the Borrower or reasonably anticipated to be incurred within ninety (90) days thereof such Subsidiary in connection therewith, within one (1) Business Day following immediately upon receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) . In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end amount of such Fiscal Year, Net Equity Proceeds exceeds the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of outstanding Advances, if any, the Term Loans equal to (A) Commitments shall be automatically and permanently reduced by the ECF Percentage amount of such Consolidated Excess Cash Flow for such Fiscal Year less excess.
(Biv) all voluntary [Reserved]
(v) [Reserved]
(vi) [Reserved]
(vii) All prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis this subsection (b) shall be made together with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior accrued interest to the date of such Consolidated Excess Cash Flow prepayment on the principal amount prepaid, and, if any such prepayment is due made on a day other than on the last day of the Interest Period applicable thereto, such prepayment shall be accompanied by the payment of the amounts required by Section 9.04(c) if the applicable Lender has provided the Borrower with adequate notice of the amount of the same. Each prepayment of the outstanding Advances made under this Section 2.06(b) shall be applied ratably to such Advances.
(viii) Notwithstanding anything in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, this Section 2.06(b) to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepaymentscontrary, to the extent that such prepayments are financed with internally generated cash the Borrower has determined in good faith and has documented in reasonable detail to the reasonable satisfaction of the Borrower (and not from the proceeds Administrative Agent, that any portion of Indebtedness or the sale or issuance a distribution to any Loan Party of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior any Net Cash Proceeds pursuant to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (vSection 2.06(b)(i) and (viiii), in respect of Net Cash Proceeds of any Foreign Subsidiary would (i) belowresult in material adverse tax consequences, (ii) result in a material breach of any agreement governing Debt of such Foreign Subsidiary permitted to exist or to be incurred by such Foreign Subsidiary under the terms of this Agreement and/or (iii) be limited or prohibited under applicable local law, the application of such Net Cash Proceeds to the prepayment of the Facility pursuant to this Section 2.06(b) shall be deferred on terms to be agreed between the Borrower and the Administrative Agent; provided that in each case the relevant Loan Party and/or Subsidiaries of such Loan Party shall take commercially reasonable steps (except to the extent that any such steps result in material cost or tax to the Borrower or any of its Subsidiaries) to minimize any such adverse tax consequences and/or to obtain any exchange control clearance or other consents, permits, authorizations or licenses which are required to enable such Net Cash Proceeds to be repatriated or advanced to, and applied by, the relevant Loan Party in order to effect such a prepayment.
Appears in 1 contract
Sources: 364 Day Bridge Facility and Guaranty Agreement (Dana Inc)
Mandatory. (i) Upon If at any time, the incurrence or issuance by Outstanding Amount of Securities Secured Revolving Loans exceeds the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))Securities Secured Revolving Commitment, then the Borrower shall immediately prepay (or Cash Collateralize, as applicable) Securities Secured Revolving Loans in an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).excess;
(ii) In If at any time, the event that Outstanding Amount of Securities Secured Revolving Loans exceeds the Securities Borrowing Base, then the Borrower shall either immediately (ax) there shall be Consolidated Excess Cash Flow for provide additional Eligible Securities in an amount sufficient to eliminate such excess or (y) prepay Securities Secured Revolving Loans in an aggregate amount equal to such excess;
(iii) If at any Fiscal Year time, the Outstanding Amount of Receivables Secured Revolving Loans exceeds the lesser of (commencing with x) the Fiscal Year ending December 31, 2022) Receivables Secured Revolving Commitment and (by) there are any Term Loans outstanding at the end of such Fiscal YearReceivables Borrowing Base, then the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, shall immediately prepay Receivables Secured Revolving Loans in an aggregate principal amount of the Term Loans equal to such excess;
(iv) If, at any time, (A) the ECF Percentage value of Eligible Securities decreases below (1) the value of such Consolidated Excess Cash Flow Eligible Securities at the time the most recent Borrowing Base Certificate was delivered multiplied by (2) the Securities Borrowing Base Maintenance Rate for such Fiscal Year less Eligible Securities (the value of such deficiency, the “Eligible Securities Deficiency”), and (B) all voluntary prepayments of Term Loansat such time, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash Outstanding Amount of the Securities Secured Revolving Loans exceeds the Securities Borrowing Base, then the Borrower shall either immediately (and not from the proceeds of Indebtedness x) provide additional Eligible Securities in an amount sufficient to eliminate such Eligible Securities Deficiency, or the sale or issuance of Equity Interests or equity contributions(y) and, prepay Securities Secured Revolving Loans in the case of all an aggregate amount equal to such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowexcess.
Appears in 1 contract
Sources: Credit Agreement (Sciquest Inc)
Mandatory. (i) Upon Subject to Section 2.05(b)(ix), within five Business Days after financial statements are required to have been delivered pursuant to Section 6.01(a) (commencing with the incurrence first full fiscal year ended December 31, 2015) and the related Compliance Certificate is required to have been delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to the sum of (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus, without duplication of any amount deducted from Consolidated Net Income in calculating Excess Cash Flow for such period, (B) the sum of (1) all voluntary prepayments of First Lien Term Loans made during such fiscal year pursuant to Section 2.05(a)(v) (or issuance comparable section) of the First Lien Credit Agreement and Term Loans made during such fiscal year pursuant to Section 2.05(a)(v), in each case, in an amount equal to the discounted amount actually paid in cash in respect of the principal amount of First Lien Term Loans or such Term Loans, as the case may be, during such fiscal year or, without duplication across periods, after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all other voluntary prepayments of First Lien Term Loans made during such fiscal year pursuant to Section 2.05(a)(v) (or comparable section) of the First Lien Credit Agreement and Term Loans made pursuant to Section 2.05(a) during such fiscal year or, without duplication across periods, after year-end and prior to when such Excess Cash Flow prepayment is due, (3) all voluntary prepayments of Revolving Credit Loans, Extended Revolving Credit Loans, Refinancing Revolving Credit Loans and Incremental Revolving Loans during such fiscal year or, without duplication across periods, after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments, Extended Revolving Credit Commitments, Refinancing Revolving Credit Commitments and/or Incremental Revolving Credit Commitments, as the case may be, are permanently reduced by the amount of such payments and (4) the amount equal to all payments in cash paid by the Borrower in connection with the buyback of Term Loans pursuant to Section 10.07(l)(x), and First Lien Term Loans pursuant to Section 10.07(l)(x) (or comparable section) of the First Lien Credit Agreement during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due and (5) all voluntary prepayments of Revolving Credit Loans (if any) incurred on the Closing Date to finance any upfront fees implemented pursuant to the “market flex” provisions of the Fee Letter, in the case of each of the immediately preceding clauses (1), (2), (3), (4) and (5), except to the extent such prepayments are funded with long-term Indebtedness (other than Revolving Credit Loans); provided that, to the extent any deduction is made pursuant to the foregoing clauses (1), (2), (3) and (4) after year-end and prior to when such Excess Cash Flow prepayment is due, such prepayment shall not be deducted with respect to the Excess Cash Flow prepayment for the succeeding fiscal year.
(ii) Subject to Section 2.05(b)(ix), if (1) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets (other than any Disposition of any property or assets permitted by ▇▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) (except as set forth in the proviso thereof and except to the extent such property is subject to a Mortgage), (n), (o), (p), (q), (r) and (u)), or (2) any Casualty Event occurs, which results in the realization or receipt by the Borrower or Restricted Subsidiary of Net Proceeds, subject to Section 2.05(b)(vi), the Borrower shall cause to be prepaid on or prior to the date which is 5 Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of its Restricted Subsidiaries such Net Proceeds, an aggregate principal amount of Term Loans in an amount equal to 100% of all such Net Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Permitted Second Priority Refinancing Debt, Permitted Debt Exchange Notes or Incremental Equivalent Debt (in each case, to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations) and the Permitted Refinancing of any such Indebtedness (other than to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations), in each case pursuant to the terms of the documentation governing such Indebtedness expressly with the net proceeds of any such Disposition or Casualty Event of, or with respect to, any property or assets constituting Collateral (such Permitted Second Priority Refinancing Debt, Permitted Debt Exchange Notes and Incremental Equivalent Debt (and the Permitted Refinancing of any such Indebtedness) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such net proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such Other Applicable Indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) Subject to Section 2.05(b)(ix), if the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (A) not permitted to be incurred or issued pursuant to Section 7.03 or (except B) that is intended to constitute Credit Agreement Refinancing Indebtedness))Indebtedness in respect of any Class of Term Loans, the Borrower shall prepay (or Cash Collateralize, as applicable) cause to be prepaid an aggregate principal amount of Pro Rata Obligations Term Loans (or, in the case of Indebtedness constituting Credit Agreement Refinancing Indebtedness, the applicable Class of Term Loans) in an amount equal to 100.00100% of all Net Proceeds received therefrom on or prior to the gross cash proceeds received by date which is five Business Days after the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted SubsidiarySubsidiary of such Net Proceeds. In connection with any prepayment under this Section 2.05(b)(iii) that is consummated in respect of all or any portion of the Initial Term Loans prior to the third anniversary of the Closing Date, (such prepayments (or Cash Collateralization) the Borrower shall pay to be applied as set forth in clauses (v) and (vii) beloweach Term Lender the fee required by Section 2.09(d).
(iiiv) In [Reserved].
(v) Notwithstanding any other provisions of this Section 2.05, (i) to the event extent that (a) there shall be Consolidated the repatriation to the United States of any Excess Cash Flow attributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable material constituent documents, including as a result of minority ownership (so long as such restrictions were not implemented for any Fiscal Year (commencing with the Fiscal Year ending December 31purpose of avoiding such mandatory prepayment requirements), 2022) and (b) there are any an amount equal to the portion of such Foreign Subsidiary Excess Cash Flow that would be so affected were the Borrower to attempt to repatriate such cash will not be required to be applied to repay Term Loans outstanding at the end of such Fiscal Yeartimes provided in this Section 2.05 so long, but only so long, as the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States (Holdings, Intermediate Holdings, the Borrower shalland its Restricted Subsidiaries hereby agree to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation, no even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Foreign Subsidiary Excess Cash Flow will otherwise be subject to repayment under this Section 2.05), 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 Foreign Subsidiary Excess Cash Flow is permissible under the applicable local law or applicable material constituent documents (even if such cash is actually not repatriated), an amount equal to the amount of the Foreign Subsidiary Excess Cash Flow that could be repatriated will be promptly (and in any event not later than one-hundred-twenty-five Business Days after such repatriation) applied (125net of an amount equal to the additional taxes of the Borrower, its Subsidiaries and the direct and indirect holders of Equity Interests in the Borrower that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) days after by the end of such Fiscal Year, prepay an aggregate principal amount Borrower to the repayment of the Term Loans equal pursuant to this Section 2.05 and (Aii) to the ECF Percentage extent that the Borrower has determined in good faith that repatriation of such Consolidated any Foreign Subsidiary Excess Cash Flow would have adverse tax cost consequences (including the imposition of withholding Taxes), an amount equal to such Foreign Subsidiary Excess Cash Flow that would be so affected will not be subject to repayment under this Section 2.05; provided that in the case of each of clauses (i) and (ii), such nonpayment shall not constitute an Event of Default (and such amounts shall be available for such Fiscal Year less (B) all voluntary prepayments working capital purposes of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtednessthe Borrower and the Restricted Subsidiaries, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior subject to the date such Consolidated prepayment provisions in this Section 2.05(b)(v)); provided, further, that (A) for purposes of this Section 2.05, Excess Cash Flow prepayment is due shall be deemed allocable to each Foreign Subsidiary, with respect to any period, in an amount equal to (in i) the case Consolidated EBITDA of any such Revolving Credit Loans or other revolving Indebtedness prepaidForeign Subsidiary for such period, to divided by (ii) the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period (it being understood and not agreed for the avoidance of doubt that such allocation shall exclude any reduction from interest and principal payments in respect of the proceeds of Indebtedness or Obligations) and (B) the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year Borrower and prior its Restricted Subsidiaries shall be entitled to the date such Consolidated reduce Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from owed to the Lenders pursuant to Section 2.05(b)(i) in respect of any Excess Cash Flow Amount in any subsequent period) (such amount, Period by the “aggregate amount of Excess Cash Flow Amount”attributable to Foreign Subsidiaries subject to the limitations and restrictions described above in this Section 2.05(b)(v) to be applied as set forth in clauses (v) and (vii) belowfor such Excess Cash Flow Period.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Jason Industries, Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower any Loan Party or any of its Restricted Subsidiaries Company Group Party of any Indebtedness (other than Indebtedness expressly permitted not prohibited to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)7.02), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Revolving Credit Loans equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower any Loan Party or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legalCompany Group Party therefrom, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following immediately upon receipt thereof by the Borrower such Loan Party or such Restricted Subsidiary, Company Group Party (such prepayments (or Cash Collateralization) to be applied as set forth in clauses clause (v) and (viiiii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow If for any Fiscal Year (commencing with reason the Fiscal Year ending December 31, 2022) and (b) there are Total Revolving Credit Outstandings at any Term Loans outstanding time exceed the Revolving Credit Facility at the end of such Fiscal Yeartime, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, shall immediately prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and L/C Borrowings and/or loans under Cash Collateralize the L/C Obligations (other Indebtednessthan the L/C Borrowings) in an aggregate amount equal to such excess.
(iii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.04(b), in each casefirst, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior shall be applied ratably to the date such Consolidated Excess Cash Flow prepayment is due (in L/C Borrowings, second, shall be applied ratably to the case of any such outstanding Revolving Credit Loans or other revolving Indebtedness prepaidLoans, and, third, shall be used to Cash Collateralize the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) remaining L/C Obligations; and, in the case of all such prepayments made of the Revolving Credit Facility required pursuant to clause (i) of this Section 2.04(b), the amount remaining, if any, after the end prepayment in full of all L/C Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such Fiscal Year prepayment amounts, cash collateralization amounts and prior to the date such Consolidated Excess Cash Flow prepayment is dueremaining amount being, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amountcollectively, the “Excess Cash Flow Reduction Amount”) to may be applied retained by the Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in clauses Section 2.05(b)(i). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (vwithout any further action by or notice to or from the Borrower or any other Loan Party) and (vii) belowto reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (NRG Yield, Inc.)
Mandatory. (i) Within fifteen (15) days after annual financial statements have been delivered pursuant to the terms of this Agreement, commencing with the fiscal year ending December 31, 2017, and for each fiscal year thereafter, the Borrowers shall prepay an aggregate principal amount of the Term Loan Facility equal to (x) the Excess Cash Flow Percentage multiplied by (y) Consolidated Excess Operating Cash Flow for the fiscal year covered by such financial statements, minus (z) the sum of the following: (i) voluntary prepayments (or purchases) during such fiscal year of Indebtedness under the Term Loan Facility (or any Incremental Term Facility) and Revolving Credit Loans under the Revolving Credit Facility, (but only to the extent that commitments under the Revolving Credit Facility are permanently reduced by the amount of such prepayment), (ii) regularly scheduled principal amortization payments made in cash on any of the Borrowers’ Consolidated Funded Debt (including the principal component of payment in respect of Capitalized Leases), and (iii) mandatory repayments (whether scheduled or otherwise) or repurchases of principal (including any premium, make-whole or penalty payments) of the Term Facility, in each case of clauses (z)(i)-(iii) during such fiscal year or, at the Parent’s election, on or prior to the 90th day after the end of such fiscal year (and without duplication in the next fiscal year).
(ii) If any of the Borrower or any Non-Borrower Subsidiary (other than the Insurance Subsidiary) Disposes of any property (other than sales of inventory in the ordinary course of business, and other than any Excluded Asset Disposition and other than the Permitted ▇▇▇▇▇▇▇▇▇ Disposition) which, in any such case, results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds received therefrom in excess of $5,000,000 in the aggregate for the Net Cash Proceeds received from all such Dispositions during the immediately preceding twelve month period (calculated after giving effect to the proviso below) no later than 45 days after the end of the fiscal quarter during which such Disposition occurred (such prepayments to be applied as set forth in clauses (v) and (viii) below, as applicable); provided that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent no later than 45 days after the end of the fiscal quarter during which such Disposition occurred), and so long as no Event Default shall have occurred and be continuing, the Borrowers may reinvest all or any portion of such Net Cash Proceeds in operating assets of the Borrowers so long as (A) within 330 days after receipt of such Net Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if a definitive agreement to so reinvest has been executed within such 330-day period, then such reinvestment shall have been consummated within 330 days after the date such definitive agreement was executed.
(iii) Upon the occurrence of a Recovery Event with respect to the Borrowers which, in any such case, results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds received therefrom in excess of $5,000,000 in the aggregate for the Net Cash Proceeds received from all such Recovery Events during the immediately preceding twelve month period (calculated after giving effect to the proviso below) no later than 45 days after the end of the fiscal quarter during which such Recovery Event occurred (such prepayments to be applied as set forth in clauses (v) and (viii) below, as applicable); provided that, with respect to any Net Cash Proceeds realized under a Recovery Event described in this Section 2.05(b)(iii), at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent no later than 45 days after the end of the fiscal quarter during which such Recovery Event occurred), and so long as no Event of Default shall have occurred and be continuing, the Borrowers may reinvest all or any portion of such Net Cash Proceeds in the replacement or restoration of any properties or assets in respect of which such Net Cash Proceeds were paid or operating assets of the Borrowers so long as (A) within 330 days after receipt of such Net Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if a definitive agreement (including, without limitation, a construction agreement) to so reinvest has been executed within such 330-day period, then such reinvestment shall have been consummated within 330 days after the date such definitive agreement was executed.
(iv) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries Borrowers of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)7.03), the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Loans equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary, Borrowers (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (viiviii) below, as applicable).
(iiv) In Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and to the principal repayment installments thereof as directed by the Borrowers and specified in the notice of prepayment, (provided that in the event that (a) there the Borrowers do not specify the order in which to apply prepayments, the Borrowers shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with deemed to have elected that such prepayment be applied to reduce the Fiscal Year ending December 31, 2022) and (b) there are any scheduled installments of principal of such Term Loans outstanding at in reverse order of maturity) and, second, to the end Revolving Credit Facility without any reduction of the Revolving Credit Commitments in the manner set forth in clause (viii) of this Section 2.05(b). Subject to Section 2.18 and clause (vi) below, such Fiscal Year, prepayments shall be paid to the Borrower shall, no later than one-hundred-twenty-five Lenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
(125vi) days after The Borrowers shall give notice to the end Administrative Agent of such Fiscal Year, prepay an aggregate principal amount any mandatory prepayment of the Term Loans equal pursuant to Section 2.05(b)(i), (Aii) or (iii), at least five (5) Business Days prior to the ECF Percentage date on which such payment is due. Such notice shall specify the date of such Consolidated Excess Cash Flow prepayment and provide a reasonably detailed calculation of the amount of such prepayment. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall promptly (and, in any event, within one (1) Business Day) give notice to each Appropriate Lender of the contents of the Borrowers’ prepayment notice and of such Appropriate Lender’s Applicable Percentage or other applicable share provided for under this Agreement of the prepayment. Each Appropriate Lender may elect (in its sole discretion) to decline all (but not less than all) of its Applicable Percentage or other applicable share provided for under this Agreement of the prepayment (such Fiscal Year less amounts so declined, the “Declined Amounts”) of any mandatory prepayment by giving notice of such election in writing (Beach, a “Rejection Notice”) all voluntary prepayments to the Administrative Agent by 12:00 p.m. (New York City time), on the date that is one (1) Business Day prior to the date that such prepayment is due. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above, any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage or other applicable share provided for under this Agreement of the total amount of such mandatory prepayment of Term Loans. The aggregate amount of the Declined Amounts shall be retained by the Borrowers and/or applied by the Borrower in any manner not inconsistent with the terms of this Agreement.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, loans under any Incremental Equivalent Debtthe Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, and second, shall be applied ratably to the outstanding Revolving Credit Loans and/or loans under other Indebtednesswithout any reduction of the Revolving Credit Commitments, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below.
Appears in 1 contract
Mandatory. (i) Upon On any date that (A)(1) the incurrence sum of the outstanding principal amount of all Loans plus the Letter of Credit Exposure exceeds (2) the Facility Limit or issuance (B)(1) thee sum of the principal amount of all Loans exceeds (2) the Loan Limit, as notified to the Borrower by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Administrative Agent (other than Indebtedness expressly permitted to with such calculation set forth in reasonable detail which shall be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)conclusive absent manifest error), the Borrower shall shall, within one Business Day, to the extent of such excess, first prepay (or Cash Collateralize, as applicable) an aggregate to the Lenders on a pro rata basis the outstanding principal amount of Pro Rata Obligations equal the Loans, and second make deposits into the Cash Collateral Account to 100.00% provide cash collateral in the amount of such excess for the gross cash proceeds received by the Borrower or any Letter of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below)Credit Exposure.
(ii) In the event that (a) there shall be Consolidated Excess If any Credit Party receives any Net Cash Flow for Proceeds in respect of any Fiscal Year (commencing with the Fiscal Year ending December 31Prepayment Event, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, then the Borrower shall, no later than one-hundred-twenty-five three Business Days following the receipt thereof, apply (125A) days after the end in respect of any sale, transfer or other disposition of ABL Priority Collateral or receipt of Net Cash Proceeds in connection with a Casualty Event involving ABL Priority Collateral, an amount equal to 100% of such Fiscal Year, Net Cash Proceeds first to prepay an aggregate to the Lenders on a pro rata basis the outstanding principal amount of the Term Loans equal Loans, and second to (A) make deposits into the ECF Percentage Cash Collateral Account to provide cash collateral up to the amount of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments Letter of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other IndebtednessExposure and, in each case, secured on if any such ABL Priority Collateral was included in the calculation of the Borrowing Base, the Borrower shall deliver a pari passu basis Borrowing Base Certificate including pro forma adjustments for such sale and/or Casualty Event concurrently with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case making of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied prepayment required by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (vthis Section 2.4(c)(ii) and (viiB) belowin respect of any other Prepayment Event, an amount equal to 100% of such Net Cash Proceeds that were not used to prepay the DIP Term Loan Facility.
Appears in 1 contract
Mandatory. (i) Upon Within the incurrence later of five (5) Business Days after the financial statements have been delivered pursuant to Section 6.01(a) for each fiscal year and ninety (90) days after the end of such fiscal year (commencing with the fiscal year ending December 31, 20212025), the Borrowers shall, subject to clauses (b)(vi) and (b)(vii) of this Section 2.05, cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus (B) the sum of (1) all voluntary prepayments of Term Loans pursuant to Section 2.05(a)(v), in an amount equal to the discounted amount actually paid in respect of the principal amount of such Term Loans, during such fiscal year or issuance after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all other voluntary prepayments of Term Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, (3) all voluntary prepayments of Revolving Credit Loans and loans under any other revolving credit facility secured by the Collateral in whole or in part on a pari passu basis (but without regard to control of remedies) with the Revolving Credit Facilities during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments or such other revolving commitments, as applicable, are permanently reduced by the amount of such payments, (4) without duplication of the amounts deducted in prior fiscal years, the amount of Restricted Payments paid in cash, (5) without duplication of amounts deducted in prior fiscal years, the amount of cash consideration paid by the Borrower and its Restricted Subsidiaries (on a consolidated basis) in connection with investments made during such period (including Permitted Acquisitions, investments constituting Permitted Investments and investments made pursuant to Section 7.06), (6) without duplication of amounts deducted in prior fiscal years, the amount of Capital Expenditures or acquisitions of intellectual property accrued or made in cash during such period and (7) without duplication of amounts deducted in prior fiscal years, and at the option of the Parent Borrower, (i) the aggregate consideration required to be paid in cash by the Parent Borrower or any of its Restricted Subsidiaries of any Indebtedness pursuant to binding contracts (other than Indebtedness expressly permitted the “Contract Consideration”) entered into prior to be incurred or issued the date on which a mandatory prepayment for such period is due pursuant to Section 7.03 2.05(b)(i) and (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicableii) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross any planned cash proceeds received expenditures by the Parent Borrower or any of its Restricted Subsidiaries from (the “Planned Expenditures”), in the case of each of the preceding clauses (i) and (ii), relating to Permitted Acquisitions or other investments, Capital Expenditures, Restricted Payments, acquisitions of intellectual property, any such scheduled payment, repurchase or redemption of Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated that was permitted by the terms of this Agreement to be incurred within ninety and paid, repurchased or redeemed or permitted tax distributions, in each case, to be consummated or made, as applicable, during the period of four consecutive fiscal quarters of the Parent Borrower following the end of such period (90except to the extent financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)); provided that to the extent that the aggregate amount (excluding in each case any amount financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) days thereof of the Parent Borrower or any Restricted Subsidiary) of such Permitted Acquisitions or other investments, Capital Expenditures, Restricted Payments, acquisitions of intellectual property, permitted scheduled payments, repurchases or redemptions of Indebtedness that were permitted by the terms of this Agreement to be incurred and paid, repurchased or redeemed or permitted tax distributions during such following period of four consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures (excluding in connection therewitheach case any amount financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) of the Parent Borrower or any Restricted Subsidiary (unless such Indebtedness has been repaid prior to the date that the Excess Cash Flow payment for such period is due (except to the extent such repayment was financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness))), within one the amount of such shortfall shall be added to the calculation of Excess Cash Flow, at the end of such period of four consecutive fiscal quarters, in the case of each of the immediately preceding clauses (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary), (such prepayments 2), (or Cash Collateralization) to be applied as set forth in clauses 3), (v4), (5), (6) and (vii7), to the extent such prepayments are not funded with the proceeds of long-term Indebtedness (other than revolving Indebtedness); provided, however, that a prepayment of Term Loans pursuant to this Section 2.05(b)(i) below)shall only be required in the amount (if any) by which the ECF Payment Amount for such fiscal year exceeds the greater of $50,000,000435,000,000 and 10% of Consolidated EBITDA.
(ii) In (A) If (1) the event that Parent Borrower or any of its Restricted Subsidiaries Disposes of any property or assets pursuant to Section 7.05(j) or (a2) there any Casualty Event occurs, which results in the realization or receipt by the Parent Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrowers shall cause to be Consolidated Excess prepaid on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Parent Borrower or such Restricted Subsidiary of such Net Cash Flow for any Fiscal Year Proceeds, subject to clauses (commencing with the Fiscal Year ending December 31, 2022b)(vi) and (bb)(vii) there are any of this Section 2.05, an aggregate principal amount of Term Loans outstanding in an amount equal to the Applicable Disposition Percentage of such Net Cash Proceeds received; provided that if at the end time that any such prepayment would be required, the Borrowers (or any Restricted Subsidiary) are required to offer to repurchase any Indebtedness secured on a pari passu basis (but without regard to control of remedies) with the Obligations (other than any Indebtedness of the type described in clause (a)(ii)(A) of the definition of “Net Cash Proceeds” that was required to be prepaid or repaid and that resulted in a reduction in the applicable Net Cash Proceeds) pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Fiscal YearDisposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower shall, no later than one-hundred-twenty-five Borrowers (125or any Restricted Subsidiary) days after may apply such Net Cash Proceeds on a pro rata basis (determined on the end basis of such Fiscal Year, prepay an the aggregate outstanding principal amount of the Term Loans equal to (A) and Other Applicable Indebtedness at such time; provided that the ECF Percentage portion of such Consolidated Excess Cash Flow for net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Fiscal Year less (Bnet proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) all voluntary prepayments to the prepayment of the Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other and to the repurchase or prepayment of Other Applicable Indebtedness, in each caseand the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly; provided, secured on a pari passu basis with the Liens securing the Obligations hereunderfurther, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, that to the extent accompanied by a permanent reduction in the relevant commitmentholders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower any event within ten (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions10) and, in the case of all such prepayments made Business Days after the end date of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent periodrejection) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof; provided, further, that no prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrowers (vor such Restricted Subsidiary) and shall have reinvested (viior entered into a binding commitment to reinvest) below.in accordance with Section 2.05(b)(ii)(B); and
Appears in 1 contract
Sources: Fifth Amended and Restated Credit Agreement (Iqvia Holdings Inc.)
Mandatory. (i) If (A) the Company or any Subsidiary Disposes of any assets other than Dispositions under Section 7.24(a), Section 7.24(b), Section 7.24(e) or Section 7.24(f) (a “Mandatory Prepayment Disposition”), or (B) the Company or any Restricted Subsidiary suffers an Event of Loss, which in each case, together with all other Mandatory Prepayment Dispositions made and Events of Loss suffered at any time since the Effective Date, result in the realization by the Loan Parties, collectively, of Net Cash Proceeds from Mandatory Prepayment Dispositions and Events of Loss in an aggregate amount in excess of $25,000,000, the Company shall in each case prepay, within three Business Days after receipt thereof by such Person, an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds; provided that (x) with respect to all or a portion of any Net Cash Proceeds realized under a Disposition (A) described in this Section 2.05(b)(i)(A) (other than in connection with any Disposition of (i) the Equity Interests in any Arena Subsidiary or (ii) any interest in the Arena), at the election of the Company, and so long as no Default shall have occurred and be continuing, the Company or such Subsidiary may reinvest (or commit to reinvest) Net Cash Proceeds arising from such Disposition in an aggregate amount, when combined with the aggregate amount of Net Cash Proceeds previously reinvested pursuant to this clause (A), not to exceed $50,000,000 in assets used or useful in the business of the Company and its Subsidiaries within 365 days after the receipt of such Net Cash Proceeds (or, to the extent so committed to be reinvested within 365 days after such receipt, is actually reinvested within 545 days after such receipt) or (B) of (i) the Equity Interests in any Arena Subsidiary or (ii) any interest in the Arena (including, without limitation, any Real Property Improvements or Real Property Other Interests in any way belonging, relating or pertaining to or benefiting the Arena), at the election of the Company, and so long as no Default shall have occurred and be continuing, the Company or such Subsidiary may reinvest (or commit to reinvest) Net Cash Proceeds arising from such Disposition in an aggregate amount, when combined with the aggregate amount of Net Cash Proceeds previously reinvested pursuant to this clause (B), not to exceed $50,000,000 in assets used or useful in the business of the Company and its Subsidiaries within 365 days after the receipt of such Net Cash Proceeds (or, to the extent so committed to be reinvested within 365 days after such receipt, is actually reinvested within 545 days after such receipt) and (y) with respect to any Net Cash Proceeds of casualty insurance or condemnation awards realized due to an Event of Loss described in this Section 2.05(b)(i)(B), at the election of the Company (as notified by the Company to the Administrative Agent on or prior to such third Business Day following receipt of such Net Cash Proceeds of casualty insurance or condemnation awards), and so long as no Default shall have occurred and be continuing, the Company or such Subsidiary may apply within 365 days (or, (x) to the extent so committed to be reinvested within 365 days after such receipt, is actually reinvested within 545 days after such receipt or (y) if such replacement or repair could not reasonably be completed within 545 days, such period shall be extended for a reasonable period of time to permit completion of such replacement and repair so long as the replacement or repair of the asset or assets that suffered the Event of Loss is being diligently pursued by the Company or such Subsidiary) after the receipt of such Net Cash Proceeds to replace or repair the equipment, fixed assets or real property in respect of which such Net Cash Proceeds were received; and provided further, that any Net Cash Proceeds not so reinvested within the time periods set forth above shall be immediately applied to the prepayment of the Term Loans.
(ii) [Reserved].
(iii) Upon the incurrence or issuance by the Borrower Company or any of its Restricted Subsidiaries Subsidiary of any Indebtedness (other than than, except in the case of any Refinancing Facility or any Refinancing Equivalent Debt or Permitted Refinancing Indebtedness expressly in respect of the Facilities, Indebtedness permitted to be incurred or issued pursuant to under Section 7.03 (except Credit Agreement Refinancing Indebtedness)7.14), the Borrower Company shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Company or such Restricted Subsidiary.
(Aiv) If for any reason the ECF Percentage of Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loanstime, loans under any Incremental Equivalent Debt, the Company shall immediately prepay Revolving Credit Loans and L/C Borrowings and/or loans under Cash Collateralize the L/C Obligations (other Indebtednessthan the L/C Borrowings) in an aggregate amount equal to such excess.
(v) Prepayments made pursuant to clauses (i) through (iii) of this Section 2.05(b), in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, except to the extent that such prepayments are financed with internally generated cash the Incremental Term Lenders under an Incremental Term Facility have otherwise agreed, shall be applied ratably to the outstanding Loans under the Initial Term Facility and each Incremental Term Facility.
(vi) Prepayments made pursuant to clause (iv) of this Section 2.05(b) shall be applied first, ratably to the Borrower (L/C Borrowings, second, except to the extent that the Incremental Revolving Credit Lenders under an Incremental Revolving Credit Facility have otherwise agreed, shall be applied ratably to the outstanding Loans under the Initial Revolving Credit Facility and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) each Incremental Revolving Credit Facility, if any, and, in third, shall be used to Cash Collateralize the remaining L/C Obligations.
(vii) In the case of all such prepayments made required pursuant to clause (i) through (iv) of this Section 2.05(b), the amount remaining, if any, after the end prepayment in full of all L/C Borrowings and Loans outstanding at such Fiscal Year time and prior the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Company for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted or from the Excess Cash Flow Amount in Company or any subsequent period) (such amount, the “Excess Cash Flow Amount”other Loan Party) to be applied reimburse the L/C Issuers or the Revolving Credit Lenders, as set forth in clauses (v) and (vii) belowapplicable.
Appears in 1 contract
Sources: Credit Agreement (Madison Square Garden Entertainment Corp.)
Mandatory. The Borrower shall prepay the Loans, without premium or penalty, (i) Upon to the extent the aggregate outstanding principal amount of the Loans is in excess of $1,500,000,000, in an amount equal to such excess if the “Closing Date” (as defined in the New Credit Agreements) of the New Credit Agreements is on or after the Closing Date, with such prepayment to be made one Business Day after such effective date and (ii) in an amount equal to (A) 100% of the Net Cash Proceeds from the issuance of the Securities after the Closing Date, with such prepayment to be made one Business Day after receipt of such Net Cash Proceeds and (B) 100% of the Net Cash Proceeds from the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness Insurance Subsidiaries) of any Debt for borrowed money, including Debt evidenced by notes, bonds or similar instruments (other than (I) Debt expressly permitted to be incurred or issued pursuant to clause (i) and (iii) of Section 7.03 7.05; (except II) borrowings under the New Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay Agreements and (or Cash Collateralize, as applicableIII) Debt in respect of commercial paper in an aggregate outstanding principal amount of Pro Rata Obligations equal to 100.00at any time not exceeding $2,500,000,000) and (C) 100% of the gross cash proceeds received Net Cash Proceeds from the issuance or sale by the Borrower or any of its Restricted Subsidiaries from (which is or will be as a result thereof subject to the Securities Exchange Act of 1934, as amended) of any Equity Interests (other than (I) as consideration for any Purchase, (II) in connection with any employees’ or directors’ share plan of the Loan Parties or any of their Subsidiaries, or (III) by any Subsidiaries of the Loan Parties to the Loan Parties or any of their Subsidiaries), with such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated prepayment to be incurred within ninety (90) days thereof in connection therewith, within made one (1) Business Day following after receipt thereof of such Net Cash Proceeds. Any prepayment of the Loans shall be accompanied by all accrued interest on the Borrower or amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to prepayment shall be applied as set forth in clauses (v) and (vii) below).
(ii) In to the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, Lenders in each case, secured on a pari passu basis accordance with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowtheir respective Applicable Percentages.
Appears in 1 contract
Sources: Loan Agreement (Anthem Inc)
Mandatory. (a) The Revolving Loan Commitment Amount shall be reduced as set forth below.
(i) Upon Following the incurrence or issuance by prepayment in full of the Borrower or Term Loans, the Revolving Loan Commitment Amount shall, without any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted further action, automatically and permanently be reduced on the date the Term Loans would otherwise have been required to be incurred prepaid with any Net Casualty Proceeds, Net Debt Proceeds, Net Disposition Proceeds or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))Net Equity Proceeds, the Borrower shall prepay (or Cash Collateralize, as applicable) in any case in an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received amount by which the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated Term Loans would otherwise be required to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below)prepaid if Term Loans had been outstanding.
(ii) In On the event that Stated Maturity Date and on each Quarterly Payment Date occurring during any period set forth below, the then Revolving Loan Commitment Amount shall, without any further action, automatically and permanently be reduced by an amount equal to the amount set forth below opposite the Stated Maturity Date or such Quarterly Payment Date, as applicable (a) there unless on or prior to any such date the then Revolving Loan Commitment Amount shall have been reduced to a lesser amount, in which case the Revolving Loan Commitment Amount shall be Consolidated Excess Cash Flow equal to such lesser amount): Period Amount of Mandatory Commitment Reduction 04/01/03 through (and including) 03/31/04 $1,250,000 04/01/04 through (and including) 03/31/05 $2,500,000 04/01/05 through (and including) 03/31/06 $3,125,000 04/01/07 through (and including) 03/31/07 $3,750,000 04/01/07 through (and including) the Stated Maturity Date for Revolving Loans $1,875,000 provided, however, that, notwithstanding the foregoing, on the Revolving Loan Commitment Termination Date, the Revolving Loan Commitment Amount shall be zero.
(b) On each date set forth below, the then Term A Loan Commitment Amount shall, without any Fiscal Year further action, automatically and permanently be reduced by the amount set forth opposite such date (commencing with unless on or prior to any such date the Fiscal Year ending then Term A Loan Commitment Amount shall have been reduced to a lesser amount, in which case the Term A Loan Commitment Amount shall be equal to such lesser amount): Date of Mandatory Amount of Mandatory Commitment Reduction Commitment Reduction June 30, 2000 $25,000,000 December 31, 20222000 $25,000,000 March 31, 2001 $25,000,000 June 30, 2001 $25,000,000 provided, however, that, notwithstanding the foregoing, on the Term A Loan Commitment Termination Date, the Term A Loan Commitment Amount shall be zero; provided further, however, that if the Borrower shall have previously delivered a Borrowing Request in accordance with Section 2.3.1 in respect of Borrowings of Term A Loans to be made on any date set forth above, the mandatory reduction of the Term A Loan Commitment Amount shall not take effect until immediately after the making of such Term A Loans, and then the Term A Loan Commitment Amount shall be reduced to an amount equal to the lesser of (A) the amount set forth above and (bB) there are the amount equal to (x) the then applicable Term A Loan Commitment Amount (immediately prior to any Term Loans outstanding at Borrowing or commitment reduction) less (y) the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowBorrowing.
Appears in 1 contract
Mandatory. (i) Upon No later than five days following the incurrence date on which financial statements have been (or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted are required to be incurred or issued be) delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable6.01(a) an aggregate principal amount of Pro Rata Obligations equal to 100.00% for each fiscal year of the gross cash proceeds received by the Lead Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year fiscal year ending December 31, 20222016) and the related Compliance Certificate has been (bor is required to be) there are any delivered pursuant to Section 6.02(a), the Borrowers shall cause to be prepaid an aggregate amount of Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later (other than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans that are junior to the 2018 Refinancing Term Loans and 2021 Incremental Term Loans in right of payment or right of security) in an amount equal to (A) the Applicable ECF Percentage of such Consolidated Excess Cash Flow Flow, if any, for such Fiscal Year less fiscal year minus (B) the sum of (1) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, during such fiscal year (in each case, case secured by the Collateral on a pari passu basis with the Liens securing 2018 Refinancing Term Loans and 2021 Incremental Term Loans), (2) the Obligations hereunder, amount actually paid (but in no event exceeding par) in respect of Term Loans (in each case, made during such Fiscal Year or after case secured by the end Collateral on a pari passu basis with the 2018 Refinancing Term Loans and 2021 Incremental Term Loans) purchased pursuant to Section 2.14 and Section 2.15 and (3) all voluntary prepayments of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such 2021 Refinancing Revolving Credit Loans or other revolving Indebtedness prepaid, during such fiscal year to the extent accompanied the 2021 Refinancing Revolving Credit Commitments are permanently reduced by a permanent reduction in the relevant commitment, and in the case amount of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andpayments, in the case of all each of the immediately preceding clauses (1) through (3), to the extent such prepayments made after are funded with Internally Generated Cash of the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent periodapplicable Borrower(s) (such amountthe difference of (A) minus (B), the “Excess Cash Flow ECF Prepayment Amount”); provided, however, that if at the time that any such prepayment would be required, either Borrower (or any Restricted Subsidiary of the Lead Borrower) is required to prepay or offer to repurchase any Incremental Equivalent Debt or any Refinancing Equivalent Debt, in each case that is secured by the Collateral on a pari passu basis, and pari passu in right of payment, with the Obligations under 2018 Refinancing Term Loans, 2021 Incremental Term Loans and 2021 Refinancing Revolving Credit Loans, pursuant to the terms of the documentation governing such Indebtedness (such Incremental Equivalent Debt or Refinancing Equivalent Debt required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then such Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans (other than Term Loans that are junior to the 2018 Refinancing Term Loans and 2021 Incremental Term Loans in right of payment or right of security) and Other Applicable Indebtedness at such time; provided, that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans (other than Term Loans that are junior to the 2018 Refinancing Term Loans and 2021 Incremental Term Loans in right of payment or right of security) in accordance with the terms hereof) to the prepayment of the Term Loans (other than Term Loans that are junior to the 2018 Refinancing Term Loans and 2021 Incremental Term Loans in right of payment or right of security) and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied as set forth to prepay the Term Loans (other than Term Loans that are junior to the 2018 Refinancing Term Loans and 2021 Incremental Term Loans in clauses (vright of payment or right of security) and (vii) belowin accordance with the terms hereof.
Appears in 1 contract
Sources: Credit Agreement (Trinseo PLC)
Mandatory. (i) Upon the incurrence or issuance by On any date (A) on which a cash equity contribution is deposited in the Borrower Collateral Account as a result of a loan made by First Gibraltar to the Borrower Parent pursuant to the terms of the First Gibraltar Loan Agreement or on which a deposit of amounts paid under or in connection with any Related Documents is made to the Mafco Collateral Account or on which a deposit of its Restricted Subsidiaries amounts constituting Net Cash Proceeds from an Asset Sale is made to the Mafco Collateral Account and (B) either (I) a Default has occurred and is continuing, (II) the Borrower fails to deliver a Look-Forward Certificate or a Deposit Certificate with respect to such deposit in accordance with the terms of any Indebtedness section 5.01(k) or (other than Indebtedness expressly permitted III) the Marvel IV Required Lenders determine, in their reasonable discretion, within 15 Business Days following the date of the receipt of the Look-Forward Certificate or within 2 Business Days following the date of the receipt of Deposit Certificate, as the case may be, referred to in clause (B)(II), that the pro forma amounts available to be incurred or issued loaned by First Gibraltar to Borrower Parent, together with amounts received by Mafco pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))or in connection with any Related Document, will be less than $8 million in any calendar quarter or will not be sufficient to pay interest on the Advances then outstanding, the Borrower Revolving Credit Facilities shall prepay be automatically and permanently reduced by an amount equal to the excess of (x) the amount of such cash equity contribution or Cash Collateralizethe amount on deposit in the Mafco Collateral Account, as applicablethe case may be, plus any interest on Collateral Investments made with such contribution or deposit over (y) an aggregate principal the sum of the amount of Pro Rata Obligations equal to 100.00% interest and fees then due and payable in respect of the gross cash proceeds received by Facilities plus the Borrower or any amount of its Restricted Subsidiaries from any such Indebtedness less all expenses of the Administrative Agent (including the reasonable and customary out-of-pocket legal, underwriting and other fees, costs fees and expenses incurred or reasonably anticipated of counsel to the Administrative Agent) then due and payable. Each such reduction of the Facilities shall be incurred within ninety (90) days thereof applied ratably first to the Tranche A Revolving Credit Facility and second to the Tranche B Revolving Credit Facility. Each such reduction of a Facility shall be made ratably among the Appropriate Lenders in connection therewith, within one (1) Business Day following receipt thereof by accordance with their Commitments with respect to such Facility. Any such amounts remaining after the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to foregoing application shall be applied as set forth in clauses (vSection 2.05(b)(i) and (vii) below)of the Term Credit Agreement.
(ii) In the event that (a) there The Revolving Credit Facilities shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) automatically and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to permanently reduced:
(A) on the ECF Percentage date of receipt by any A Company of the Net Cash Proceeds of issuances, sales or liquidations of any capital stock (including any securities convertible into or exchangeable for capital stock or any warrants, rights or options to acquire capital stock) of any A Company (other than (x) any Net Cash Proceeds in respect of any Asset Sale and (y) the preferred stock to be issued by FN Holdings in exchange for the preferred stock of FN Escrow upon consummation of the merger of FN Escrow with and into FN Holdings which preferred stock will be redeemed in full concurrently with or immediately after the consummation of such Consolidated Excess Cash Flow for such Fiscal Year less merger),
(B) on the date of receipt by any A Company of any dividends, other distributions or any loans or advances made in respect of the capital stock of any other A Company (other than FN Holdings and FN Parent) (provided that this clause (B) shall not apply to the receipt by any A Company of any dividends, other distributions or any loans or advances made in respect of all voluntary prepayments or any portion of Term Loansthe proceeds received by Mafco or any of its Subsidiaries from any Asset Sale or any sale, lease, transfer or other disposition specified in clauses (i) through (v) of the definition of "Asset Sale",
(C) on the date of receipt by any A Company of the proceeds of distributions, dividends or any loans under or advances made on account of or as a result of the issuance, sale or liquidation of any Incremental Equivalent Debtcapital stock (including any securities convertible into or exchangeable for capital stock or any warrants, Revolving Credit Loans and/or loans under rights or options to acquire capital stock but excluding any Asset Sale) of, or the sale, issuance or incurrence of any Debt by, any Designated Operating Company, and
(D) on the date of receipt by any A Company of the Net Cash Proceeds from the sale, issuance or incurrence by any A Company of any Debt (other Indebtednessthan any sale, issuance or incurrence by Revlon Holdings Inc. of any Debt to any of its Subsidiaries), by an amount equal to the excess of (x) the amount so received (except, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due extent (in 1) required pursuant to the case terms of any agreement or instruments relating to Debt existing on the date hereof or otherwise approved by the Marvel IV Required Lenders of any A Company or Designated Operating Company to prepay or redeem or purchase such Debt or (2) prohibited to be so applied by the terms of any agreement or instrument relating to Debt existing on the date hereof or otherwise approved by the Marvel IV Required Lenders of any A Company or Designated Operating Company) over (y) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable. Each such reduction of the Revolving Credit Facilities shall be applied ratably first to the Tranche A Revolving Credit Facility and second to the Tranche B Revolving Credit Facility. Each such reduction of a Revolving Credit Facility shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all Facility. Any such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made amounts remaining after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted foregoing application shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses Section 2.05(b)(ii) of the Term Credit Agreement.
(iii) On the date of receipt by Mafco or any of its Subsidiaries (other than the Bank and its Subsidiaries) of the Net Cash Proceeds from the sale, transfer or other disposition of (x) all or any portion of the capital stock of the Bank (other than any issuance by the Bank or any Subsidiary of the Bank of capital stock) or (y) any asset of the Bank, the Revolving Credit Facilities shall be automatically and permanently reduced by an amount equal to the excess of (A) such Net Cash Proceeds (other than the portion of such Net Cash Proceeds required to be paid to the holders of the Class B common stock of FN Holdings and the holders of the FN Holdings Preferred Stock) over (B) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable. Each such reduction of the Revolving Credit Facilities shall be applied ratably first to the Tranche A Revolving Credit Facility and second to the Tranche B Revolving Credit Facility. Each such reduction of the Revolving Credit Facilities shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Revolving Credit Facility. Any Net Cash Proceeds remaining after the foregoing application shall be applied as set forth in Section 2.05(b)(iii) of the Term Credit Agreement.
(iv) On the date of receipt by Mafco or any of its Subsidiaries, on or prior to the later of the Tranche B Termination Date and the Term Credit Agreement Termination Date, of the Net Cash Proceeds from any Asset Sale (other than the sale, disposal or other monetization of the News Corp. Preferred ADRs or the New Marvel Shares), the excess of (A) such Net Cash Proceeds over (B) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable shall be applied ratably first to the automatic and permanent reduction in full of the Tranche B Revolving Credit Facility and second to the prepayment of the Tranche A Revolving Credit Facility as set forth in Section 2.06(b)(iii). Each such reduction or prepayment of a Revolving Credit Facility shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Revolving Credit Facility. Any Net Cash Proceeds remaining after the foregoing application shall be applied as set forth in Section 2.05(b)(iv) of the Term Credit Agreement.
(v) On the date of receipt by Mafco or any of its Subsidiaries, on or prior to the later of the Tranche B Termination Date and the Term Credit Agreement Termination Date, of the Net Cash Proceeds from the sale, disposal or other monetization of the News Corp. Preferred ADRs or the New Marvel Shares, the excess of (A) such Net Cash Proceeds over (B) the sum of (1) the amount of interest and fees then due and payable in respect of the Facilities plus (2) the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable plus (3) the aggregate amount paid (including the aggregate amount of interest, fees and expenses then due and payable in respect of the Term Facilities) from such Net Cash Proceeds pursuant to the terms of Section 2.05(b)(v) of the Term Credit Agreement shall be applied first to the permanent reduction in full of the Tranche B Revolving Credit Facility and second to the prepayment of the Tranche A Revolving Credit Facility as set forth in Section 2.06(b)(iv). Each such reduction or prepayment of a Revolving Credit Facility shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Revolving Credit Facility.
(vi) On and after the date (occurring after the later of the Tranche B Termination Date and the Term Credit Agreement Termination Date), on which Mafco and its Subsidiaries have received Net Cash Proceeds in an amount equal to the Asset Sale Threshold from Asset Sales, upon any Asset Sale in respect of which Mafco and its Subsidiaries have received Net Cash Proceeds (which, together with the aggregate amount of Net Cash Proceeds from and after the Effective Date from Asset Sales, exceeds the Asset Sale Threshold), the Tranche A Revolving Credit Facility shall be automatically and permanently reduced by an amount equal to the excess of (x) 50% of that portion of the Net Cash Proceeds in excess of the Asset Sale Threshold (after taking into account the aggregate amount of Net Cash Proceeds from and after the Effective Date from Asset Sales) from such Asset Sale over (y) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable. Each such reduction of the Tranche A Revolving Credit Facility shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to the Tranche A Revolving Credit Facility.
(vii) below.On each date that an Event of Default set forth in Section 6.01(a) shall have occurred and be continuing, the Revolving Credit Facilities shall be automatically and permanently reduced by an amount equal to the excess of (x) the amount on deposit in the Second Mafco Collateral Account over (y) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable. Each such reduction of the Revolving Credit Facilities shall be applied ratably first to the Tranche A Revolving Credit Facility and second to the Tranche B Revolving Credit Facility. Each such reduction of the Revolving Credit Facilities shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Revolving Credit Facility. Any amounts remaining on deposit in the Second Mafco Collateral Account after the foregoing application shall be applied as set forth in Section 2.05(b)(vi) of the Term Credit Agreement. If an Event of Default set forth in Section 6.01(a) shall occur and be continuing at the same time as an "Event of Default" set forth in Section 6.01(a) of the Term Credit Agreement shall occur and be continuing, such amount (less the sum of (1) the amount of interest and fees then due and payable in respect of the Term Facilities plus (2) the amount of expenses of the "Administrative Agent" under the Term Credit Agreement (including the reasonable fees and expenses of counsel to such
Appears in 1 contract
Sources: Revolving Credit Agreement (Andrews Group Inc /De/)
Mandatory. (i) Upon If for any reason the incurrence or issuance Total Revolving Credit Outstandings in respect of the Facility at any time exceeds the Loan Cap, the Borrowers shall immediately repay the Revolving Credit Loans (including the Swingline Loans) and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that (i) the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Credit Loans (including all Swingline Loans) the Total Revolving Credit Outstandings in respect of the Facility exceed the Loan Cap and (ii) if such excess is due to a change in the eligibility criteria by the Borrower Administrative Agent hereunder or any the imposition of its Restricted Subsidiaries of any Indebtedness a new or increased reserve, such payment shall be due within three (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (13) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below)Days.
(ii) In Each Loan Party hereby irrevocably waives the event that (a) there shall be Consolidated Excess right to direct, during a Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal YearDominion Period, the Borrower shallapplication of all funds in each Cash Collateral Account and agrees that, no later than one-hundred-twenty-five (125) days after subject to the end of such Fiscal YearABL Intercreditor Agreement, prepay an aggregate principal amount of the Term Loans equal to Administrative Agent (A) may or, upon the ECF Percentage written direction of the Required Lenders at any time during such Consolidated Excess Cash Flow Dominion Period, shall deliver a Blockage Notice to each Deposit Account Bank for such Fiscal Year less each Approved Deposit Account and (B) shall, subject to Section 2.19, during a Cash Dominion Period, except as provided in Section 8.04, apply all voluntary prepayments payments in respect of Term Loansany Obligations and all available funds in each Cash Collateral Account on a daily basis as follows: first, loans under any Incremental Equivalent Debtto repay the outstanding principal balance of the Swingline Loans until the Swingline Loans shall have been repaid in full; second, to repay the outstanding principal balance of the Revolving Credit Loans and/or loans under until the Revolving Credit Loans shall have been repaid in full; and then to any other IndebtednessObligation owing by any Borrower or any other Loan Party then due and payable. If (1) following such application, (2) outside of a Cash Dominion Period or (3) after all Letters of Credit shall have expired or been fully drawn and all Commitments shall have been terminated, there are no Loans outstanding and no other Obligations that are then due and payable (and, during a Cash Dominion Period, Cash Collateral has been provided in an amount equal to 103% of the L/C Obligations in the manner required in Section 2.16), then the Administrative Agent shall cause any remaining funds in the Cash Collateral Accounts to be paid at the written direction of the Borrowers (or, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end absence of such Fiscal Year and prior direction, to the date such Consolidated Excess Cash Flow prepayment is due Borrowers or another Person lawfully entitled thereto).
(iii) All prepayments under this Section 2.05 shall be made together with, in the case of any such Revolving Credit prepayment of a SOFR Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such SOFR Rate Loan pursuant to Section 3.06. Notwithstanding any of the other provisions of this Section 2.05(b)(iii), so long as no Event of Default shall have occurred and be continuing, if any prepayment of SOFR Rate Loans is required to be made under this Section 2.05(b)(iii), other than on the last day of the Interest Period therefor, any Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrowers or any other revolving Indebtedness prepaid, Loan Party) to apply such amount to the extent accompanied prepayment of such Loans in accordance with this Section 2.05(b)(iii) (it being agreed, for clarity, that interest shall continue to accrue on the Loans so prepaid until the amount so deposited is actually applied to prepay such Loans). Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by a permanent reduction in or notice to or from the relevant commitment, and in the case of all Borrowers or any other Loan Party) to apply such prepayments, amount to the extent that such prepayments are financed with internally generated cash prepayment of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, outstanding Loans in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowaccordance with this Section 2.05(b)(iii).
Appears in 1 contract
Sources: Abl Credit Agreement (V2X, Inc.)
Mandatory. (i) Upon Following the incurrence or issuance by the Borrower or any end of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any each Fiscal Year (of CBI commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year2003, the Borrower Borrowers shall, no later than one-hundred-twenty-five (125) days after on the 90th day following the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans Advances comprising part of the same Borrowings made by such Borrower in an amount equal to (A) 75% of the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Year. Each such prepayment shall be applied ratably first to the Term LoansFacilities and to the installments thereof pro rata to the remaining installments thereof, loans under any Incremental Equivalent Debt, and second to the Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied Facility as set forth in clause (vi) below.
(ii) The Borrowers shall, on the date of receipt of the Net Cash Proceeds by any Loan Party or any of its Subsidiaries from (A) the sale, lease, transfer or other disposition of any assets of any Loan Party or any of its Subsidiaries (other than any sale, lease, transfer or other disposition of assets pursuant to (x) clauses (i) through (vii) and (ix) of Section 5.02(e) or (y) pursuant to clause (viii) of Section 5.02(e) if the proceeds are being reinvested in the existing lines of business of CBI and its Subsidiaries in accordance with such clause (viii)) or (B) any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries and not otherwise included in clause (A) above, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the amount of such Net Cash Proceeds. Each such prepayment shall be applied ratably first to the Term Facilities and to the installments thereof pro rata to the remaining installments thereof and second to the Revolving Credit Facility as set forth in clause (vi) below.
(iii) The Borrowers shall, on the date of the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt (other than Debt incurred or issued pursuant to Section 5.02(b)), prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the amount of such Net Cash Proceeds. Each such prepayment shall be applied ratably first to the Term Facilities and to the installments thereof pro rata to the remaining installments thereof and second to the Revolving Credit Facility as set forth in clause (vi) below.
(iv) The Borrowers shall, on each Business Day, prepay an aggregate principal amount of the Revolving Credit Advances comprising part of the same Borrowings, the Letter of Credit Advances and the Swing Line Advances in an amount equal to the amount by which (A) the sum of the aggregate principal amount of (x) the Revolving Credit Advances, (y) the Letter of Credit Advances and (z) the Swing Line Advances then outstanding plus the aggregate Available Amount of all Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility on such Business Day.
(v) and (vii) belowThe Borrowers shall, on each Business Day, pay to the Administrative Agent for deposit in the L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral Account to equal the amount by which the aggregate Available Amount of all Letters of Credit then outstanding exceeds the Letter of Credit Facility on such Business Day.
Appears in 1 contract
Mandatory. (i) Within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) (without giving effect to the proviso in such section) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shall prepay an aggregate principal amount of Loans equal to the excess (if any):
(A) 50% of Excess Cash Flow for the fiscal year covered by such financial statements (commencing with the fiscal year ending December 29, 2013) over
(B) the sum of (I) the aggregate principal amount of Term Loans and Revolving Credit Loans prepaid pursuant to Sections 2.05 and of prepayments or redemption, defeasance, repurchase or other discharge of the 2014 Notes and (II) scheduled principal repayments, to the extent actually made, of Term Loans pursuant to Sections 2.07(a) or 2.07(b) (and, in each such case, to the extent related to revolving debt, so long as the related commitments are terminated), during the applicable fiscal year or during the period after such fiscal year but before the Excess Cash Flow payment is due and made so long as not deducted in the following fiscal year, (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided that the percentage of Excess Cash Flow required to be applied as a prepayment will be subject to the following stepdowns: (i) 25% if the Borrower’s Consolidated Senior Secured Leverage Ratio as of the end of the fiscal year or period covered by such financial statements is less than 2.50:1.00 and greater than or equal to 2.00:1.00 as of the end of such fiscal year or period and (ii) 0% if the Borrower’s Consolidated Senior Secured Leverage Ratio as of the end of the fiscal year or period covered by such financial statements is less than 2.00:1.00 as of the end of such fiscal year or period.
(ii) Subject to clause (vii) below, if the Borrower or any of its Restricted Subsidiaries Disposes of any property pursuant to Section 7.05(g), (o) or (q) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within ten (10) Business Days following upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent within 10 Business Days of such Disposition), and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Restricted Subsidiary may (A) reinvest all or any portion of such Net Cash Proceeds in Permitted Reinvestments so long as within 360 days after the receipt of such Net Cash Proceeds (or 540 days if within 360 days of the receipt of such Net Cash Proceeds, the Borrower or such Restricted Subsidiary enters into a binding agreement to reinvest such Net Cash Proceeds), such reinvestment shall have been consummated or (B) elect to have any or all of such Net Cash Proceeds applied to a reinvestment in Permitted Reinvestments that occurred not more than 270 days prior to the date of receipt of such Net Cash Proceeds (as certified by the Borrower in writing to the Administrative Agent); provided, further, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested or which the Borrower or such Restricted Subsidiary decides not to so reinvest shall be applied within five (5) Business Days to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)7.02), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Loans equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (viiviii) below).
(iv) Subject to clause (vii) below, upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Restricted Subsidiaries, and not otherwise included in clause (ii) In the event that or (aiii) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearthis Section 2.05(b), the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, shall prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case 100% of all Net Cash Proceeds received therefrom within ten (10) Business Days after receipt thereof by the Borrower or such prepayments, to the extent that Restricted Subsidiary (such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any Extraordinary Receipt, at the election of the Borrower (as notified by the Borrower to the Administrative Agent within 10 Business Days of the receipt of proceeds (provided that no notice shall be required to be delivered to the Administrative Agent unless such proceeds exceed $5,000,000)), and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Restricted Subsidiary may (A) apply such cash proceeds within 360 days after the receipt thereof (or 540 days if within 360 days of the receipt of such Net Cash Proceeds, the Borrower or such Restricted Subsidiary enters into a binding agreement to reinvest such Net Cash Proceeds) to make a Permitted Reinvestment or (B) or elect to have any or all of such Net Cash Proceeds applied to a reinvestment in Permitted Reinvestments that occurred not more than 270 days prior to the date of receipt of such Net Cash Proceeds; and provided, further, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested or which the Borrower or such Restricted Subsidiary decides not to so reinvest shall be applied within five (5) Business Days to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term A Loans and the Term B Loans to the principal repayment installments thereof on a pro rata basis and, second, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b), without reduction in the Revolving Credit Commitments with respect thereto.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall within one Business Day prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) belowNotwithstanding any of the other provisions of clause (ii) or (iv) of this Section 2.05(b) no prepayment which would otherwise be required to be made pursuant to clause (ii) or (iv) of this Section 2.05(b) shall be required to the extent that the sum of such Net Cash Proceeds and all other Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries in connection with any event described in clauses (ii) or (iv) of this Section 2.05(b) does not exceed $25,000,000 in the fiscal year of the Borrower in which such event occurs (it being understood that a prepayment shall only be required to the extent of the excess over $25,000,000 in such fiscal year).
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuers or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Wendy's Co)
Mandatory. (i) For any Excess Cash Flow Period, within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrower shall prepay an aggregate principal amount of the Term Loans for which the Borrower is responsible in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for such Excess Cash Flow Period, minus (B) the sum of (without duplication):
(1) the aggregate amount of voluntary principal prepayments of the Loans or Indebtedness that is pari passu in right of payment and security with the Initial Term Loans, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment, and prepayments in connection with the lender replacement provisions (including pursuant to Section 3.08)) (except prepayments of Loans under any Revolving Tranche or other revolving Indebtedness that is pari passu in right of payment and security with the Revolving Credit Commitments that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(2) the aggregate amount of voluntary principal prepayments of the Second Lien Loans or Indebtedness that is pari passu in right of payment and security with the Second Lien Loans, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment, and prepayments in connection with the lender replacement provisions) (except prepayments of Second Lien Loans under any revolving tranche or other revolving Indebtedness that is pari passu in right of payment and security with the Second Lien Loans that are not accompanied by a corresponding permanent commitment reduction of the revolving tranches), in each case other than to the extent that any such prepayment is funded with the proceeds of Second Lien Credit Agreement Refinancing Indebtedness or any other long-term Indebtedness,
(3) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii) or (ix),
(4) the portion of the Excess Cash Flow applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase Indebtedness that is pari passu in right of payment and security with the Initial Term Loans (in each case, to the extent the documentation governing such Indebtedness requires such a prepayment or repurchase thereof with Excess Cash Flow, in each case in an amount not to exceed the product of (x) the amount of Excess Cash Flow and (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and all such other Indebtedness), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(5) the amount of capital expenditures either made in cash by the Borrower or any of its Restricted Subsidiaries during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period and in each case other than to the extent that any such capital expenditures are funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(6) the aggregate amount of cash consideration paid by the Borrower or any Restricted Subsidiary (on a consolidated basis) in connection with any Investments (including, without limitation, any acquisitions, acquisitions of intellectual property and any deferred payments in connection with the Acquisition) during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period and in each case other than to the extent that any such cash consideration is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(7) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Section 2.05(b)(i)(B)(7) in respect of prior fiscal years, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such fiscal year relating to Investments (including, without limitation, any acquisitions, acquisitions of intellectual property and any deferred payments in connection with the Acquisition) or made pursuant to Section 7.05 or capital expenditures to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such fiscal year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and capital expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters; provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was equal to or less than 4.40:1.00 or 3.90:1.00, respectively (the amount described in this clause (i), the “ECF Prepayment Amount”); provided, further that no prepayment shall be required with respect to any Excess Cash Flow Period unless the ECF Prepayment Amount exceeds the greater of $10,000,000 and 6% of Four Quarter Consolidated EBITDA and, in such case, the ECF Prepayment Amount shall be the amount in excess thereof; provided, further that, if the Consolidated First Lien Net Leverage Ratio on a Pro Forma Basis after giving effect to any Excess Cash Flow prepayment would result in the percentage in respect of the applicable Excess Cash Flow Period being reduced to 25% or 0%, then such reduced percentage applicable to the Excess Cash Flow prepayment required to be made shall apply.
(ii) If any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) results in the receipt by the Borrower or any Restricted Subsidiary of aggregate Net Cash Proceeds in excess of the greater of $25,000,000 and 15% of Four Quarter Consolidated EBITDA (“Relevant Transaction”), then, except to the extent the Borrower elects in a written notice to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrower shall prepay, subject to Section 2.05(b)(viii), an aggregate principal amount of Term Loans in an amount equal to 100% (as may be adjusted pursuant to the second proviso below) of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof (or within 15 Business Days after the later of the date the threshold referred to above is first exceeded and the date the relevant Net Cash Proceeds are received) by the Borrower or such Restricted Subsidiary; provided that the Borrower may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness that is pari passu in right of payment and security with the Initial Term Loans to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I); provided, further that only the amount of Net Cash Proceeds in excess of the greater of $25,000,000 and 15% of Four Quarter Consolidated EBITDA for any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) shall be subject to prepayment pursuant to this Section 2.05(b)(ii) and, in such case, the required prepayment shall be only the amount in excess thereof.
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries Subsidiary of any Refinancing Notes, any Specified Refinancing Term Loans or any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.01, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loan Tranches in an amount equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(iiiv) In Upon the event that (a) there shall be Consolidated Excess Cash Flow for incurrence by the Borrower or any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are Restricted Subsidiary of any Term Loans outstanding at the end of such Fiscal YearSpecified Refinancing Debt constituting revolving credit facilities, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, shall prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary.
(v) If for any reason the sum of the Total Revolving Credit Outstandings or the sum of outstanding Specified Refinancing Revolving Loans at any time exceed the sum of the applicable Revolving Tranche in respect thereof (including after giving effect to any reduction in the Revolving Credit Commitments pursuant to Section 2.06), the Borrower shall immediately prepay the Loans under the applicable Revolving Tranche and/or loans Cash Collateralize the L/C Obligations related thereto in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(v) unless after the prepayment in full of the Loans under the applicable Revolving Tranche the sum of the Total Revolving Credit Outstandings or the outstanding Specified Refinancing Revolving Loans, as the case may be, exceed the aggregate Revolving Credit Commitments or the commitments to make Specified Refinancing Revolving Loans, as the case may be, then in effect.
(vi) Subject to Section 2.17, each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied to each Term Loan Tranche on a pro rata basis (or, if agreed to in writing by the Majority Lenders of a Term Loan Tranche, in a manner that provides for more favorable prepayment treatment of other IndebtednessTerm Loan Tranches, so long as each other such Term Loan 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 Term Loan Tranche receiving less than such Pro Rata Share) (other than a prepayment of (x) Term Loans or Revolving Credit Loans, as applicable, with the proceeds of Indebtedness incurred pursuant to Section 2.18, which shall be applied to the Term Loan Tranche or Revolving Tranche, as applicable, being refinanced pursuant thereto or (y) Term Loans with the proceeds of any Refinancing Notes issued to the extent permitted under Section 7.01(a), which shall be applied to the Term Loan Tranche being refinanced pursuant thereto). Amounts to be applied to a Term Loan Tranche in connection with prepayments made pursuant to this Section 2.05(b) shall be applied to interest on each such Term Loan Tranche on a pro rata basis that is accrued and payable at such time and thereafter to the remaining scheduled installments with respect to such Term Loan Tranche in direct order of maturity. Each prepayment of Term Loans under a Facility pursuant to this Section 2.05(b) shall be applied on a pro rata basis to the then outstanding Base Rate Loans and Eurocurrency Rate Loans under such Facility; provided that, if there are no Declining Lenders with respect to such prepayment, then the amount thereof shall be applied first to Base Rate Loans under such Facility to the full extent thereof before application to Eurocurrency Rate Loans, in each case, secured on case in a pari passu basis with manner that minimizes the Liens securing amount payable by the Obligations hereunder, Borrower in each case, made during such Fiscal Year or after the end respect of such Fiscal Year and prior prepayment pursuant to the date such Consolidated Excess Cash Flow prepayment is due Section 3.06.
(vii) All prepayments under this Section 2.05 shall be made together with, in the case of any such Revolving Credit Loans or prepayment of a Eurocurrency Rate Loan on a date other revolving Indebtedness prepaidthan the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section 3.06 and, to the extent accompanied applicable, any additional amounts required pursuant to Section 2.05(a)(iii). Notwithstanding any of the other provisions of this Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Rate Loans is required to be made under this Section 2.05(b), other than on the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by a permanent reduction or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b) (it being agreed, for clarity, that interest shall continue to accrue on the relevant commitmentLoans so prepaid until the amount so deposited is actually applied to prepay such Loans). Upon the occurrence and during the continuance of any Event of Default, and the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in the case accordance with this Section 2.05(b).
(viii) Notwithstanding any other provisions of all such prepaymentsthis Section 2.05, to the extent that such prepayments are financed with internally generated cash any or all of the Borrower Net Cash Proceeds of any Asset Sale by a Non-U.S. Subsidiary (and not from the proceeds or a U.S Subsidiary of Indebtedness a Non-U.S. Subsidiary) (a “Foreign Disposition”) or the sale Net Cash Proceeds of any Casualty Event from a Non-U.S. Subsidiary (or issuance a U.S. Subsidiary of Equity Interests or equity contributionsa Non-U.S. Subsidiary) and(a “Foreign Casualty Event”), in the each case of all such prepayments made after the end of such Fiscal Year and prior giving rise to the date such Consolidated a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) are or is dueprohibited, provided that restricted or delayed by applicable local law, rule or regulation (including, without limitation, financial assistance and corporate benefit restrictions and fiduciary and statutory duties of any director or officer of such amount Subsidiaries) from being repatriated to the Borrower or so deducted shall not be deducted from prepaid or such repatriation or prepayment would present a material risk of liability for the Excess Cash Flow Amount in any subsequent period) applicable Subsidiary or its directors or officers (such amount, the “Excess Cash Flow Amount”) or gives rise to be applied as set forth in clauses (v) and (vii) below.a material risk of breach of fiduciary or statutory dut
Appears in 1 contract
Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)
Mandatory. (i) Within five Business Days after financial statements have been delivered pursuant to Section 6.01(a)(i) beginning with the delivery of financial statements with respect to the 2011 Fiscal Year, and the related Compliance Certificate has been delivered pursuant to Section 6.02(a)(i) (each, an “ECF Payment Date”), the Borrower shall prepay an aggregate principal amount of Loans equal to the excess (if any) of
(A) 50% of Excess Cash Flow for, in the case of the 2011 Fiscal Year and in the case of each Fiscal Year thereafter, the Fiscal Year covered by such financial statements over (B) the aggregate principal amount of Term Loans and Revolving Credit Loans prepaid pursuant to Section 2.05(a)(i) (x) during the applicable period (which, in any event shall not include any designated prepayment pursuant to clause (y) below) and (y) at the Borrower’s option, at any time on or prior to the ECF Payment Date during the Fiscal Year immediately following the Fiscal Year that such Excess Cash Flow calculation relates to; provided that, with respect to a prepayment of Revolving Credit Loans, such prepayment is accompanied by a permanent reduction of the applicable Commitment (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, further, that for each Fiscal Year after the 2011 Fiscal Year, the percentage of Excess Cash Flow required to be applied as a prepayment will be subject to the following stepdowns: (i) 25% if the Borrower’s Consolidated Leverage Ratio as of the end of the Fiscal Year covered by such financial statements is less than 4.50:1.00 and greater than or equal to 3.00:1.00 as of the end of such Fiscal Year and (ii) 0% if the Borrower’s Consolidated Leverage Ratio as of the end of the Fiscal Year covered by such financial statements is less than 3.00:1.00 as of the end of such Fiscal Year.
(ii) If the Borrower or any of its Restricted Subsidiaries Disposes of any property (a) pursuant to Section 7.05(f), (h) or (m) which constitutes a Permitted Asset Sale and results in the realization by the Borrower or any such Restricted Subsidiary of Net Cash Proceeds in excess of $10,000,000 in the case of all such Permitted Asset Sales after the Closing Date (the “Dispositions Threshold Amount”) or (b) pursuant to Section 7.05(i), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds in excess of the Dispositions Threshold Amount within five Business Days following receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided that (x) with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent within five Business Days of such Disposition), and so long as no Event of Default shall have occurred and be continuing at the time of receipt of such Net Cash Proceeds, the Borrower or such Restricted Subsidiary may reinvest (or commit to reinvest) all or any portion of such Net Cash Proceeds in Permitted Reinvestments so long as such reinvestment shall have been consummated within 365 days after the receipt of such Net Cash Proceeds (or if committed to be reinvested within 365 days after the receipt of such Net Cash Proceeds, shall have been reinvested within 18 months after the receipt of such Net Cash Proceeds) (as certified by the Borrower in writing to the Administrative Agent); provided, further, that any Net Cash Proceeds not so reinvested or which the Borrower or such Restricted Subsidiary decides not to so reinvest shall be applied within five Business Days of the expiration of such period or such decision to the prepayment of the Loans as set forth in this Section 2.05(b)(ii) and (y) at the election of the Borrower (as notified by the Borrower to the Administrative Agent within 10 Business Days of the date of receipt of any Net Cash Proceeds from the Minnesota Disposition, together with reasonably detailed calculations showing the amount of Net Cash Proceeds generated by the gross proceeds of the Minnesota Disposition), and so long as no Event of Default shall have occurred and be continuing at the time of receipt of such Net Cash Proceeds, the Borrower or such Restricted Subsidiary may use the Available Minnesota Disposition Proceeds Amount to make Restricted Payments in accordance with Section 7.06(h) within 180 days after the receipt of such Net Cash Proceeds. Notwithstanding anything to the contrary in this Agreement, if the Borrower or any Restricted Subsidiary shall consummate the Minnesota Disposition (either in its entirety or in part) on or prior to the Closing Date (i) any Net Cash Proceeds received in respect thereof shall be deemed to have been received by the Borrower or such Restricted Subsidiary on the Closing Date; (ii) the amount of such Net Cash Proceeds received in respect thereof shall not be reduced by any amount of Minnesota Disposition Proceeds applied to repay or redeem the Applebee’s and IHOP Notes pursuant to the terms of the indentures governing the Applebee’s and IHOP Notes; and (iii) the Borrower or such Restricted Subsidiary shall comply with the requirements of the foregoing paragraph as if such Net Cash Proceeds were received on the Closing Date.
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly x) not permitted to be incurred or issued pursuant to Section 7.03 7.02, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary and (except Credit Agreement Refinancing Indebtedness)y) incurred under Section 7.02(k), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Loans equal to 100.00100% of the gross cash all Net Cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred therefrom within ninety (90) days thereof in connection therewith, within one (1) five Business Day Days following receipt thereof by the Borrower or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Restricted Subsidiaries which results in the realization by the Borrower or any such Restricted Subsidiary of Net Cash Proceeds in excess of $10,000,000 in the case of all such Extraordinary Receipts received after the Closing Date (the “Extraordinary Receipts Threshold Amount”) (other than Net Cash Proceeds from any casualty and condemnation award not exceeding $1,000,000), and not otherwise included in clause (i) or (ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearthis Section 2.05(b), the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, shall prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case 100% of all Net Cash Proceeds in excess of the Extraordinary Receipts Threshold Amount received therefrom within five (5) Business Days after receipt thereof by the Borrower or such prepayments, to the extent that Restricted Subsidiary (such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below); provided, however, that at the election of the Borrower (as notified by the Borrower to the Administrative Agent within five Business Days of the date of receipt of such Extraordinary Receipt), and so long as no Event of Default shall have occurred and be continuing at the time of receipt of such Net Cash Proceeds, the Borrower or such Restricted Subsidiary may reinvest (or commit to reinvest) all or any portion of such Net Cash Proceeds in Permitted Reinvestments so long as such reinvestment shall have been consummated within 365 days after the receipt of such Net Cash Proceeds (or if committed to be reinvested within 365 days after the receipt of such Net Cash Proceeds, shall have been reinvested within 18 months after the receipt of such Net Cash Proceeds); and provided, further, that any Net Cash Proceeds not so reinvested or which the Borrower or such Restricted Subsidiary decides not to so reinvest shall be applied within five Business Days of the expiration of such period or such decision to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and to the principal repayment installments thereof on a pro-rata basis and, second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), without reduction in the Revolving Credit Commitments with respect thereto.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall within one Business Day prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuers or the Revolving Credit Lenders, as applicable.
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Sources: Credit Agreement (DineEquity, Inc)
Mandatory. (i) Upon The Borrower shall, on the 90th day following the end of each Fiscal Year, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings and deposit an amount in the L/C Cash Collateral Account in an amount equal to 50% of the amount of Excess Cash Flow for such Fiscal Year. Each such prepayment shall be applied first, subject to subsection (c) below, pro rata to the Term A Facility and the Term B Facility and, in each case, ratably to the remaining installments thereof and second to the Revolving Credit Facility as set forth in clause (viii) below.
(ii) The Borrower shall, on the date of receipt of the Net Cash Proceeds by the Borrower or any of its Subsidiaries from the sale, lease, transfer or other disposition of any assets of the Borrower or any of its Subsidiaries (other than any sale, lease, transfer or other disposition of Inventory in the ordinary course of business and not as part of the sale of a business), prepay an aggregate principal amount of the Advances comprising part of the same Borrowings and deposit an amount in the L/C Cash Collateral Account in accordance with clause (viii) below in an amount equal to the amount of such Net Cash Proceeds; provided, however, that the Borrower shall not be required to make any such prepayment and deposit with respect to up to $5,000,000 of Net Cash Proceeds from any sale, lease, transfer or other disposition of assets pursuant to clause (iv) of Section 5.02(e). Each such prepayment shall be applied first, subject to subsection (c) below, pro rata to the Term A Facility and the Term B Facility and, in each case, ratably to the remaining installments thereof and second to the Revolving Credit Facility as set forth in clause (viii) below.
(iii) The Borrower shall, on the date of receipt of the Net Cash Proceeds by the Borrower or any of its Subsidiaries from the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Debt (other than Indebtedness expressly permitted to be Debt incurred or issued pursuant to Section 7.03 clause (except Credit Agreement Refinancing Indebtedness)i)(A)(B)(C) or (D), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that or (aiii)(A), (B), (C) there shall be Consolidated Excess Cash Flow for any Fiscal Year or (commencing with the Fiscal Year ending December 31, 2022D) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal YearSection 5.02(b)), prepay an aggregate principal amount of the Term Loans Advances comprising part of the same Borrowings and deposit an amount in the L/C Cash Collateral Account in accordance with clause (viii) below in an amount equal to (A) 75% of the ECF Percentage amount of such Consolidated Excess Net Cash Flow for Proceeds. Each such Fiscal Year less prepayment shall be applied first, subject to subsection (Bc) all voluntary prepayments of below, pro rata to the Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other IndebtednessA Facility and the Term B Facility and, in each case, secured ratably to the remaining installments thereof and second to the Revolving Credit Facility as set forth in clause (viii) below.
(iv) The Borrower shall, on a pari passu basis the date of receipt of the Net Cash Proceeds by any Loan Party from the sale or issuance by any Loan Party of any Equity Interests (including, 40 without limitation, receipt of any capital contribution), prepay an aggregate principal amount of the Advances comprising part of the same Borrowings and deposit an amount in the L/C Cash Collateral Account in accordance with clause (viii) below in an amount equal to 50% of the Liens securing amount of such Net Cash Proceeds; provided, however, that the Obligations hereunderBorrower shall not be required to make such prepayment and deposit with respect to up to $50,000,000 in the aggregate of such Net Cash Proceeds to the extent that such Net Cash Proceeds are raised prior to September 30, 2002. Each such prepayment shall be applied first, subject to subsection (c) below, pro rata to the Term A Facility and the Term B Facility and, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior ratably to the date such Consolidated Excess Cash Flow prepayment is due (in remaining installments thereof and second to the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied Facility as set forth in clauses clause (viii) below.
(v) The Borrower shall, on the date of receipt of the Net Cash Proceeds by the Borrower or any of its Subsidiaries from any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries and not otherwise included in clause (ii), (iii) or (iv) above, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings and deposit an amount in the L/C Cash Collateral Account in accordance with clause (viii) below in an amount equal to the amount of such Net Cash Proceeds. Each such prepayment shall be applied first, subject to subsection (c) below, pro rata to the Term A Facility and the Term B Facility and, in each case, ratably to the remaining installments thereof in order of maturity and second to the Revolving Credit Facility as set forth in clause (viii) below.
(vi) The Borrower shall, on each Business Day, prepay an aggregate principal amount of the Revolving Credit Advances comprising part of the same Borrowings, the Letter of Credit Advances and the Swing Line Advances and deposit an amount in the L/C Cash Collateral Account in accordance with clause (viii) below in an amount equal to the amount by which (A) the sum of the aggregate principal amount of (x) the Revolving Credit Advances, (y) the Letter of Credit Advances and (z) the Swing Line Advances then outstanding plus the aggregate Available Amount of all Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility on such Business Day.
(vii) belowThe Borrower shall, on each Business Day, pay to the Administrative Agent for deposit in the L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral Account to equal the amount by which the aggregate Available Amount of all Letters of Credit then outstanding exceeds the Letter of Credit Facility on such Business Day.
Appears in 1 contract
Mandatory. (i) Upon the incurrence or issuance by If the Borrower or any of its Restricted Subsidiaries Disposes of any Indebtedness property (other than Indebtedness expressly any Disposition of any property permitted to be incurred by Section 7.05) in a single transaction or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))series of related transactions which results in the realization by such Person of Net Cash Proceeds of at least $2,500,000, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage 100% of such Consolidated Excess Net Cash Flow Proceeds immediately upon receipt thereof by such Person.
(ii) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries, and not otherwise included in clause (i) of this Section 2.04(b), the Borrower shall prepay an aggregate principal amount of the Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Fiscal Year less Subsidiary.
(Biii) all voluntary prepayments Each prepayment of the Term LoansLoans pursuant to the foregoing provisions of this Section 2.04(b) shall be applied to the principal repayment installments thereof in inverse order of maturity.
(iv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, loans under any Incremental Equivalent Debtor if the Total Revolving Credit Outstandings exceed $15,000,000 on the 16th day after the date of the initial Credit Extension hereunder, the Borrower shall immediately prepay Revolving Credit Loans and L/C Borrowings and/or loans under Cash Collateralize the L/C Obligations (other Indebtedness, than the L/C Borrowings) in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during an aggregate amount equal to such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses excess.
(v) and Prepayments of the Revolving Credit Facility made pursuant to this Section 2.04(b), first, shall be applied ratably to the L/C Borrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (viiwithout any further action by or notice to or from the Borrower or any other Loan Party) belowto reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within five (other than Indebtedness expressly permitted 5) Business Days after financial statements are required to be incurred or issued have been delivered pursuant to Section 7.03 6.01(a) and the related Compliance Certificate is required to have been delivered pursuant to Section 6.02(a) (except Credit Agreement Refinancing Indebtedness)the date any such prepayment is required to be made, an “ECF Payment Date”), the Borrower shall prepay (or Cash Collateralize, as applicable) cause to be prepaid an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00(A) 50% of Excess Cash Flow, if any, for the gross cash proceeds received fiscal year of the Borrower covered by such financial statements (commencing with the fiscal year of the Borrower ending December 31, 2013) minus (B) the sum of (1) the aggregate principal amount of any voluntary prepayments of Term Loans made pursuant to Section 2.05(a) during such fiscal year or on or prior to the applicable ECF Payment Date (without duplication) to the extent financed with Internally Generated Cash Flow and (2) solely to the extent the amount of the Revolving Credit Commitments are permanently reduced pursuant to Section 2.06 in connection therewith (and solely to the extent of the amount of such reduction), the aggregate principal amount of any voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) during such fiscal year or, at the Borrower’s option, on or prior to the applicable ECF Payment Date (without duplication) to the extent financed with Internally Generated Cash Flow; provided, that, with respect to any fiscal year, such percentage shall be reduced to 25% if the Total Leverage Ratio as of the last day of such fiscal year was less than or equal to 3.75:1.00; and provided, further, that no mandatory prepayment under this Section 2.05(b)(i) shall be required with respect to any fiscal year if the Total Leverage Ratio as of the last day of such fiscal year was less than or equal to 3.25:1.00.
(ii) [Reserved.]
(iii) (A) If (x) the Borrower or any Restricted Subsidiary Disposes of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legalproperty or assets (other than any Disposition of any property or assets permitted by Section 7.05(a) through (h) or (l) through (o)) or (y) any Casualty Event occurs, underwriting and other fees, costs and expenses incurred which results in the realization or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Subsidiary of Net Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal YearProceeds, the Borrower shall, no later than one-hundred-twenty-shall cause to be prepaid on or prior to the date which is five (1255) days Business Days after the end date of the realization or receipt of such Fiscal Year, prepay Net Cash Proceeds an aggregate principal amount of the Term Loans in an amount equal to (A100% of all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(iii)(A) if, on or prior to such date, the ECF Percentage Borrower shall have given written notice to the Administrative Agent of its intention to reinvest or cause to be reinvested all or a portion of such Consolidated Excess Net Cash Flow for Proceeds in accordance with Section 2.05(b)(iii)(B) (which election may only be made if no Event of Default has occurred and is then continuing); provided further that if at the time that any such Fiscal Year less prepayment would be required, the Borrower is required (Bor required to offer) all voluntary prepayments of Term Loans, loans under to repay or repurchase any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, Indebtedness permitted to be incurred hereunder that is secured on a pari passu basis with the Liens securing Obligations pursuant to the Obligations hereunder, in each case, made during terms of the documentation governing such Fiscal Year or after Indebtedness with the end net proceeds of such Fiscal Year Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and prior Other Applicable Indebtedness at such time; provided, that the portion of such net proceeds allocated to the date Other Applicable Indebtedness shall not exceed the amount of such Consolidated Excess Cash Flow net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment is due (in of the case Term Loans and to the repayment or repurchase of any such Revolving Credit Other Applicable Indebtedness, and the amount of prepayment of the Term Loans or other revolving Indebtedness prepaidthat would have otherwise been required pursuant to this Section 2.05(b)(iii) shall be reduced accordingly; provided further, that to the extent accompanied by a permanent reduction in the relevant commitmentholders of Other Applicable Indebtedness decline to have such indebtedness repaid or repurchased, the declined amount shall promptly (and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower any event within five (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions5) and, in the case of all such prepayments made Business Days after the end date of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent periodrejection) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth to prepay the Term Loans in clauses (v) and (vii) belowaccordance with the terms hereof.
Appears in 1 contract
Mandatory. (i) Upon If, at any time (including, but not limited to, such times as Borrower delivers a Borrowing Base Certificate to the incurrence Agent in accordance with the requirements hereof) the aggregate outstanding principal balance of Loans (excluding the Permitted Overadvance as then in effect) exceeds the Borrowing Base then in effect, Borrower shall make a prepayment of the Loans in an aggregate amount at least equal to such excess. Notwithstanding the foregoing, in lieu of making a cash prepayment to reduce such excess, Search may cause additional Eligible Car Loans to be transferred to Borrower for inclusion in the Borrowing Base to at least the extent required to eliminate such excess. Any such transfers made to Borrower by Search pursuant to this Section 2.5(b) or issuance Section 2.6(b) hereof shall be at no cost to Borrower other than that recorded as an intercompany loan by Search to Borrower which shall be unsecured and shall not be payable by Borrower until the Obligations shall have been finally paid in full and the Commitments terminated.
(ii) If, at any time, Borrower (A) consummates any restructuring of, or similar transaction with respect to, any of its Restricted Subsidiaries the Existing Securitizations, or (B) receives any federal income tax refund to the extent related to the operations of any Indebtedness (other than Indebtedness expressly permitted MSF prior to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))the Closing Date, the Borrower shall prepay (or Cash Collateralize, as applicable) make a prepayment of the Loans in an aggregate principal amount of Pro Rata Obligations equal to 100.00100% of the gross cash proceeds received by the Borrower or any (net of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, transaction costs and expenses incurred or reasonably anticipated payable to be incurred within ninety non-Affiliates of Borrower in the case of transactions described in clause (90A) days thereof above) received by Borrower in connection therewithwith such transaction or refund, within one (1) Business Day following receipt thereof by in each case together with accrued interest thereon to the Borrower or date of prepayment as provided in Section 2.9 hereof. Any such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to prepayment shall be applied as set forth in clauses Section 2.6 hereof. The mandatory prepayment requirements arising due to the occurrence of any of the transactions referred to in clause (vA) and (vii) below)above shall not be construed as or be deemed to constitute a consent by the Banks to any such transaction.
(iiiii) In Borrower shall make or cause to be made prepayments of the event that Loans on a daily basis, on each Business Day, in an amount equal to 100% of all collections in respect of owned Portfolio Loans from any source or of any nature (aincluding without limitation proceeds received from the sale of vehicles securing Repossession Loans) there received as of the close of business on the immediately preceding Business Day. Such prepayments shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior pursuant to the date cash management and payment provisions described in Section 3.2 and the Lockbox Agreement. Each such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses Section 2.6 hereof.
(viv) and (vii) belowIf, at any time, Borrower sells, discounts or otherwise disposes of any Car Loans or other Collateral, Borrower shall make a prepayment of the Loans in an amount equal to 100% of the cash proceeds received by Borrower in connection with such transaction, together with accrued interest thereon to the date of prepayment as provided in Section 2.9 hereof. Any such prepayment shall be applied as set forth in Section 2.6 hereof. The foregoing mandatory prepayment requirement shall not be construed as or be deemed to constitute a consent by the Banks to any such transaction.
Appears in 1 contract
Mandatory. (i) Within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrower shall prepay an aggregate principal amount of Term Loans in an amount equal to (A) the applicable Excess Cash Flow Percentage of Excess Cash Flow for the fiscal year covered by such financial statements commencing with the fiscal year ending on December 31, 2022, minus (B) the sum of (1) the aggregate amount of voluntary principal prepayments of the Loans and/or voluntary prepayments, redemptions, purchases or similar payment of any other Indebtedness secured by Liens on the Collateral ranking equal in priority (but without regard to the control of remedies) with the Liens on the Collateral securing the Obligations (including prepayments, redemptions, purchases or similar payments at a discount to par, with credit given to the aggregate principal amount of Indebtedness prepaid, redeemed, purchased, retired or reduced), but in each case excluding prepayments, redemptions, purchases or similar payments funded with the proceeds of Specified Refinancing Debt, Refinancing Notes, Credit Agreement Refinancing Indebtedness or any other long-term Indebtedness, and in the case of any prepayment of Revolving Loans, only to the extent that Revolving Commitments are permanently reduced in the same amount of such prepayments), (2) all Applicable ECF Credits and (3) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii), in each case during such fiscal year or after year-end and prior to the time such prepayment pursuant to this Section 2.05(b) is due and (C) without duplication, to the extent that the amount of payments described in clauses (B)(1) through (3) above would exceed the amount calculated pursuant to clause (A) above for any fiscal year, the amount of such excess shall, at the Borrower’s option, be carried forward to the next fiscal year (and not any subsequent filed year) and be used as a credit against the amount calculated pursuant to clause (A) above in such fiscal year (any payments described in the foregoing clauses (1) through (3) of this clause (B) made after the end of the applicable fiscal year but prior to the time such prepayment pursuant to this Section 2.05(b) is due in respect of such fiscal year, an “After Year End Payment”; provided further that the Borrower may use a portion of Excess Cash Flow to prepay any other Indebtedness that is secured by Liens or the Collateral that rank on an equal priority basis (but without regard to the control of remedies) with Liens or the Collateral securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment thereof with the Excess Cash Flow in an amount not to exceed the product of (1) the amount of such Excess Cash Flow and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I), provided, that, no prepayment shall be required with respect to any Excess Cash Flow Period to the extent Excess Cash Flow for such period is less than $25.0 million.
(ii) If (x) any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) results in the receipt by the Borrower or any Restricted Subsidiary of aggregate Net Cash Proceeds in excess of $25.0 million or (y) the aggregate Net Cash Proceeds received by the Borrower and the Restricted Subsidiaries from all Asset Sales and Casualty Events not described in clause (x) above exceeds $100.0 million in any fiscal year (any such transaction or series of related transactions referred to in clauses (x) and each such transaction referred to in clause (y) if the threshold therein is exceeded (effective with respect to each such transaction under clause (y) in a fiscal year only upon the later of the date of consummation thereof and the date such threshold is first exceeded) being a “Relevant Transaction”), then, except to the extent that the Borrower elects to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrower shall prepay, subject to Section 2.05(b)(viii), an aggregate principal amount of Term Loans in an amount equal to the Applicable Asset Sale Percentage of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof (or, in the case of clause (y) above, within 15 Business Days after the later of the date the threshold therein is first exceeded and the date the relevant Net Cash Proceeds are received) by the Borrower or such Restricted Subsidiary (any Net Cash Proceeds not required to be prepaid pursuant to this Section 2.5(b)(ii) in reliance on this sentence (i.e. such 50% or 100%) shall constitute “Total Leverage Excess Proceeds”); provided that the Borrower may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay, redeem, purchase or make a similar payment in respect of any other Indebtedness that is secured by Liens or the Collateral that rank on an equal priority basis (but without regard to the control of remedies) with Liens or the Collateral securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment, redemption, purchase or similar payment thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I); provided, further that only the amount of Net Cash Proceeds in excess of $25.0 million for any Asset Sale or Casualty Event (under clause (x) above) or $100.0 million in any fiscal year (under clause (y) above) shall be subject to prepayment pursuant to this Section 2.05(b)(ii).
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries Subsidiary of any New Term Loan Commitments Incurred to refinance Term Loans, Refinancing Notes, any Specified Refinancing Term Loans, any Credit Agreement Refinancing Indebtedness (other than in respect of Term Loans or any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.01, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations applicable Term Loan Tranche or Tranches in an amount equal to 100.00100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the gross cash proceeds received Borrower or such Restricted Subsidiary in accordance with the provisions of Section 2.05(b)(vi).
(iv) Upon the incurrence by the Borrower or any Restricted Subsidiary of its Restricted Subsidiaries from any such Indebtedness less Specified Refinancing Debt constituting revolving credit facilities, the Borrower shall prepay an aggregate principal amount of Revolving Credit Loans in an amount equal to 100% of all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary.
(v) If, for any reason, the sum of the Total Revolving Credit Outstandings or the sum of outstanding Specified Refinancing Revolving Loans at any time exceed the sum of the Revolving Tranche in respect thereof (including after giving effect to any reduction in the Revolving Credit Commitments pursuant to Section 2.06), the Borrower shall immediately prepay the applicable Revolving Tranche and/or Cash Collateralize the L/C Obligations related thereto in an aggregate amount equal to such prepayments excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(v) unless after the prepayment in full of the applicable Revolving Tranche the sum of the Total Revolving Credit Outstandings or the outstanding Specified Refinancing Revolving Loans, as the case may be, exceed the aggregate Revolving Credit Commitments or the commitments to make Specified Refinancing Revolving Loans, as the case may be, then in effect.
(or Cash Collateralizationvi) Subject to Section 2.17, and except with respect to any New Loan Commitments intended to refinance any Term Loans, Refinancing Notes, any Specified Refinancing Term Loans, any Credit Agreement Refinancing Indebtedness in respect of Term Loans which shall be applied to the applicable Term Loan Tranche that is being refinanced (as directed by the Borrower), each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied to each Term Loan Tranche on a pro rata basis (or, if agreed to in writing by the Majority Lenders of a Term Loan Tranche, in a manner that provides for more favorable prepayment treatment of other Term Loan Tranches, so long as each other such Term Loan 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 Term Loan Tranche receiving less than such Pro Rata Share) (other than a prepayment of (x) Term Loans or Revolving Credit Loans, as set forth applicable, with the proceeds of Indebtedness incurred pursuant to Section 2.18, which shall be applied to the Term Loan Tranche or Revolving Tranche, as applicable, being refinanced pursuant thereto or (y) Term Loans with the proceeds of any New Loan Commitments, Refinancing Notes, Specified Refinancing Debt or Credit Agreement Refinancing Indebtedness Incurred to the extent permitted under Section 7.01(a), which shall be applied to the Term Loan Tranche being refinanced pursuant thereto). Amounts to be applied to a Term Loan Tranche in clauses (vconnection with prepayments made pursuant to this Section 2.05(b) shall be applied to the remaining scheduled installments with respect to such Term Loan Tranche in direct order of maturity. Each prepayment of Term Loans under a Facility pursuant to this Section 2.05(b) shall be applied on a pro rata basis to the then outstanding Base Rate Loans and Eurocurrency Rate Loans under such Facility; provided that, if there are no Declining Lenders with respect to such prepayment, then the amount thereof shall be applied first to Base Rate Loans under such Facility to the full extent thereof before application to Eurocurrency Rate Loans, in each case in a manner that minimizes the amount payable by the Borrower in respect of such prepayment pursuant to Section 3.06.
(vii) below).
(ii) In the event that (a) there All prepayments under this Section 2.05 shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31made together with, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or prepayment of a Eurocurrency Rate Loan on a date other revolving Indebtedness prepaidthan the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section 3.06 and, to the extent accompanied applicable, any additional amounts required pursuant to Section 2.05(a)(iii). Notwithstanding any of the other provisions of this Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Rate Loans is required to be made under this Section 2.05(b), other than on the last day of the Interest Period therefor, the Borrower may, in their sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by a permanent reduction or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b) (it being agreed, for clarity, that interest shall continue to accrue on the relevant commitmentLoans so prepaid until the amount so deposited is actually applied to prepay such Loans). Upon the occurrence and during the continuance of any Event of Default, and the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in the case accordance with this Section 2.05(b).
(viii) Notwithstanding any other provisions of all such prepaymentsthis Section 2.05, to the extent that such prepayments are financed with internally generated cash any or all of the Net Cash Proceeds of any Asset Sale by a Non-Guarantor Subsidiary (a “Non-Guarantor Disposition”) or the Net Cash Proceeds of any Casualty Event from a Non-Guarantor Subsidiary (a “Non-Guarantor Casualty Event”), in each case giving rise to a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) are or is prohibited, restricted or delayed by applicable local law, rule or regulation (including financial assistance and corporate benefit restrictions and statutory duties of the relevant directors) from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable law, rule or regulation (including financial assistance and corporate benefit restrictions and statutory duties of the relevant directors) will not permit repatriation to the United States (the Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation (including financial assistance and corporate benefit restrictions and statutory duties of the relevant directors) such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not from later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the proceeds repayment of Indebtedness the Loans pursuant to this Section 2.05 to the extent provided herein.
(ix) Notwithstanding any other provisions of this Section 2.05, to the extent that the Borrower has determined in good faith that repatriation of any or all of the sale Net Cash Proceeds of any Non-Guarantor Disposition or issuance of Equity Interests or equity contributions) andany Non-Guarantor Casualty Event, in each case giving rise to a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) would have an adverse tax cost consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds or Excess Cash Flow, the case of all such Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Non-Guarantor Subsidiary; provided that, on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments made pursuant to this Section 2.05 (or twelve months after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is duewould have been so required to be applied if it were Net Cash Proceeds), provided that (x) the Borrower shall apply an amount equal to such amount so deducted shall not be deducted from the Net Cash Proceeds or Excess Cash Flow Amount in any subsequent period) (to such amount, the “reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below.Flo
Appears in 1 contract
Sources: Credit Agreement (PPD, Inc.)
Mandatory. (i) Upon Within ninety (90) days after the incurrence or issuance by end of each Fiscal Year commencing with the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))Fiscal Year ending December 31, 2008, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Senior Debt equal to 100.0050% of Excess Cash Flow for such Fiscal Year; provided, however with respect to Fiscal Year 2008, Excess Cash Flow shall be computed for the gross cash proceeds received by period commencing with the Commitment Effective Date through the last day of such Fiscal Year; and further provided, however, if the Total Leverage Ratio as of the last day of such Fiscal Year is less than 2.0 to 1.0, then the Borrower shall not be required to make a prepayment pursuant to this Section 2.05(b)(i) for such Fiscal Year.
(ii) If any Loan Party or any of its Restricted Subsidiaries from disposes of any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof property in connection therewithwith an Asset Disposition which results in the realization by such Person of Net Cash Proceeds, within one (1) Business Day following the Borrower shall prepay an aggregate principal amount of Senior Debt equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by the Borrower or such Restricted Subsidiary, Person (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (vvii) and (viiix) below); provided, however, that, with respect to any Net Cash Proceeds realized under an Asset Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such Asset Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets performing the same or a similar function or otherwise used in the business of such Loan Party or such Subsidiary so long as within 180 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not so reinvested (or subject to a definitive agreement to be reinvested) shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii) immediately upon the earlier of the occurrence of a Default or the expiration of such 180 day period.
(iiiii) In Upon the event that sale or issuance by any Loan Party or any of its Subsidiaries of any of its Capital Securities (aother than any sales or issuances of Capital Securities to another Loan Party or in connection with a Permitted Acquisition) there shall be Consolidated Excess Cash Flow for or the exercise by any Fiscal Year Person of any convertible Capital Securities issued by a Loan Party (commencing with other than the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal YearWarrants), the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, shall prepay an aggregate principal amount of the Term Loans Senior Debt equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such prepayments, to the extent that Loan Party or such Subsidiary (such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (vvii) and (ix) below).
(iv) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt (other than Debt permitted under Sections 7.01 (a) – (i) and (k)), the Borrower shall prepay an aggregate principal amount of Senior Debt equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vii) and (ix) below).
(v) Immediately upon the receipt by any Loan Party or any Subsidiary of Net Cash Proceeds from the exercise of any Warrants, the Borrower shall prepay an aggregate principal amount of Senior Debt equal to (A) 100% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is equal to or greater than 2.50:1.0, (B) 75% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 2.50:1.0 but equal to or greater than 2.0:1.0 and (C) 50% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 2.0:1.0 but equal to or greater than 1.50:1.0; provided, however, that if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 1.50:1.0, then the Borrower shall not be required to make a prepayment pursuant to this Section 2.05(b)(v).
(vi) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clauses (ii), (iii), (iv) or (v) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Senior Debt equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vii) and (ix) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 180 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(v).
(vii) Each prepayment of Senior Debt pursuant to the foregoing provisions of this Section 2.05(b) shall be applied to the outstanding Loans; provided, however, the Borrower shall offer to prepay a Ratable Portion of the Private Placement Notes with any such prepayment amount pursuant to the terms of the Private Placement Note Purchase Agreement and, to the extent accepted by the Private Placement Noteholders, prepay the applicable Private Placement Notes so long as at least a Ratable Portion of the outstanding Loans is prepaid contemporaneously with such prepayment of Private Placement Notes; in each case accompanied by a certificate of a Responsible Officer of the Borrower demonstrating the calculation of such prepayment amount and applied, first, to the Term A Loan and the Term B Loan (ratably to the remaining principal amortization payments) and, second, to the Revolving Credit Facility in the manner set forth in clause (ix) of this Section 2.05(b).
(viii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(ix) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), (iv) or (v) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(iv). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) Upon the incurrence or issuance by On any date (A) on which a cash equity contribution is deposited in the Borrower Collateral Account as a result of a loan made by First Gibraltar to the Borrower Parent pursuant to the terms of the First Gibraltar Loan Agreement or on which a deposit of amounts paid under or in connection with any Related Documents is made to the Mafco Collateral Account or on which a deposit of amounts constituting Net Cash Proceeds from an Asset Sale is made to the Mafco Collateral Account and (B) either (I) a Default has occurred and is continuing, (II) the Borrower fails to deliver a Look-Forward Certificate or a Deposit Certificate with respect to such deposit in accordance with the terms of section 5.01(k) or (III) the Mafco Finance Required Lenders determine, in their reasonable discretion, within 15 Business Days following the date of the receipt of the Look-Forward Certificate or within 2 Business Days following the date of the receipt of Deposit Certificate, as the case may be, referred to in clause (B)(II), that the pro forma amounts available to be loaned by First Gibraltar to Borrower Parent, together with amounts received by Mafco pursuant to or in connection with any Related Document, will be less than $15 million in any calendar quarter (of which at least $10 million shall be from amounts available to be loaned by First Gibraltar to the Borrower Parent) or will not be sufficient to pay interest on the Advances then outstanding and interest on the Debt then outstanding under the Term Credit Agreement, the Revolving Credit Facility shall be automatically and permanently reduced by an amount equal to the excess of (x) the amount of such cash equity contribution or the amount on deposit in the Mafco Collateral Account, as the case may be, plus any interest on Collateral Investments made with such contribution or deposit over (y) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable plus the aggregate amount paid (including the aggregate amount of interest, fees and expenses then due and payable in respect of the Term Facility) from such cash equity contribution or such amount on deposit in the Mafco Collateral Account, as the case may be, or from any interest on Collateral Investments made with such contribution or deposit pursuant to the terms of Section 2.05(b)(i) of the Term Credit Agreement. Each such reduction shall be applied ratably to the Revolving Credit Facility and shall be made ratably among the Lenders in accordance with their Revolving Credit Commitments.
(ii) The Revolving Credit Facility shall be automatically and permanently reduced:
(A) on the date of receipt by any A Company of the Net Cash Proceeds of issuances, sales or liquidations of any capital stock (including any securities convertible into or exchangeable for capital stock or any warrants, rights or options to acquire capital stock) of any A Company (other than any Net Cash Proceeds in respect of any Asset Sale),
(B) on the date of receipt by any A Company of any dividends, other distributions or any loans or advances made in respect of the capital stock of any other A Company (other than FN Holdings and FN Parent) or any Designated Operating Company (provided that this clause (B) shall not apply (1) to the dividend made by MCG in accordance with the public announcements made prior to the date hereof and (2) to the receipt by any A Company of any dividends, other distributions or any loans or advances made in respect of all or any portion of the proceeds received by Mafco or any of its Restricted Subsidiaries from any Asset Sale or any sale, lease, transfer or other disposition specified in clauses (i) through (iv) of the definition of "Asset Sale"),
(C) on the date of receipt by any A Company of the proceeds of distributions, dividends or any loans or advances made on account of or as a result of the issuance, sale or liquidation of any Indebtedness capital stock (including any securities convertible into or exchangeable for capital stock or any warrants, rights or options to acquire capital stock but excluding any Asset Sale) of, or the sale, issuance or incurrence of any Debt by, any Designated Operating Company, and
(D) on the date of receipt by any A Company of the Net Cash Proceeds from the sale, issuance or incurrence by any A Company of any Debt (other than Indebtedness expressly permitted any sale, issuance or incurrence by Revlon Holdings Inc. of any Debt to any of its Subsidiaries), by an amount equal to the excess of (x) the amount so received (except, in each case, to the extent (1) required pursuant to the terms of any agreement or instruments relating to Debt existing on the date hereof or otherwise approved by the Mafco Finance Required Lenders of any A Company or Designated Operating Company to prepay or redeem or purchase such Debt or (2) prohibited to be incurred so applied by the terms of any agreement or issued instrument relating to Debt existing on the date hereof or otherwise approved by the Mafco Finance Required Lenders of any A Company or Designated Operating Company) over (y) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable plus the aggregate amount paid (including the aggregate amount of interest, fees and expenses then due and payable in respect of the Term Facility) from the amounts so received pursuant to the terms of Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable2.05(b)(ii) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received Term Credit Agreement. Each such reduction shall be applied ratably to the Revolving Credit Facility and shall be made ratably among the Lenders in accordance with their Revolving Credit Commitments.
(iii) On the date of receipt by the Borrower Mafco or any of its Restricted Subsidiaries (other than the Bank and its Subsidiaries) of the Net Cash Proceeds from the sale, transfer or other disposition of (x) all or any portion of the capital stock of the Bank (other than any issuance by the Bank or any Subsidiary of the Bank of capital stock) or (y) any asset of the Bank, the Revolving Credit Facility shall be automatically and permanently reduced by an amount equal to the excess of (A) such Indebtedness less all Net Cash Proceeds (other than the portion of such Net Cash Proceeds required to be paid to the holders of the Class B common stock of FN Holdings and the holders of the FN Holdings Preferred Stock) over (B) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable and customary out-of-pocket legal, underwriting and other fees, costs fees and expenses incurred or reasonably anticipated of counsel to the Administrative Agent) then due and payable plus the aggregate amount paid (including the aggregate amount of interest, fees and expenses then due and payable in respect of the Term Facility) from such Net Cash Proceeds pursuant to the terms of Section 2.05(b)(iii) of the Term Credit Agreement. Each such reduction shall be incurred within ninety applied ratably to the Revolving Credit Facility and shall be made ratably among the Lenders in accordance with their Revolving Credit Commitments.
(90iv) days thereof On and after the date on which Mafco and its Subsidiaries have received Net Cash Proceeds in connection therewithan amount equal to the Asset Sale Threshold from Asset Sales, within one upon any Asset Sale in respect of which Mafco and its Subsidiaries have received Net Cash Proceeds (1which, together with the aggregate amount of Net Cash Proceeds from and after the Effective Date from Asset Sales, exceeds the Asset Sale Threshold), the Revolving Credit Facility shall be automatically and permanently reduced by an amount equal to the excess of (x) Business Day following receipt thereof the sum of (A) 50% of that portion of the Net Cash Proceeds (up to $150 million) in excess of the Asset Sale Threshold (after taking into account the aggregate amount of Net Cash Proceeds from and after the Effective Date from Asset Sales) from such Asset Sale plus (B) 100% of that portion of the Net Cash Proceeds from such Asset Sale in excess of the sum of the Asset Sale Threshold plus $150 million (after taking into account the aggregate amount of Net Cash Proceeds from and after the Effective Date from Asset Sales) over (y) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable plus the aggregate amount paid (including the aggregate amount of interest, fees and expenses then due and payable in respect of the Term Facility) from such Net Cash Proceeds pursuant to the terms of Section 2.05(b)(iv) of the Term Credit Agreement. Each such reduction shall be applied ratably to the Revolving Credit Facility and shall be made ratably among the Lenders in accordance with their Revolving Credit Commitments.
(v) On each date that an Event of Default set forth in Section 6.01(a) shall have occurred and be continuing, the Revolving Credit Facility shall be automatically and permanently reduced by an amount equal to the Borrower or excess of (x) the amount on deposit in the Second Mafco Collateral Account over (y) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable. Each such Restricted Subsidiary, (such prepayments (or Cash Collateralization) reduction shall be applied ratably to the Revolving Credit Facility and shall be made ratably among the Lenders in accordance with their Revolving Credit Commitments. Any amounts remaining on deposit in the Second Mafco Collateral Account after the foregoing application shall be applied as set forth in clauses (v) and (vii) belowSection 2.05(b)(v).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below.
Appears in 1 contract
Sources: Revolving Credit Agreement (Andrews Group Inc /De/)
Mandatory. (i) Upon Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the incurrence related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall, subject to clause (b)(v) of this Section 2.03, prepay an aggregate principal amount of Loans equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period then ended minus (B) the sum of (i) all voluntary prepayments of (x) Initial Loans and (y) Loans that are not Initial Loans, Incremental Equivalent Debt and Refinancing Equivalent Debt, in each case that is secured by the Collateral on a pari passu basis with the Initial Loans, during such Excess Cash Flow Period or issuance after the end of such Excess Cash Flow Period and prior to when such Excess Cash Flow prepayment is due (limited in the case of any voluntary prepayments made pursuant to Section 2.03(a)(v) to the discounted amount actually paid in respect of the principal amount of such Loans (as opposed to the face amount so prepaid)) and (ii) all voluntary prepayments of loans under the ABL Facilities or any other revolving credit facilities during such Excess Cash Flow Period or after the end of such Excess Cash Flow Period and prior to when such Excess Cash Flow prepayment is due, to the extent the ABL Facilities or such other revolving credit facilities (and commitments thereunder) are permanently reduced by the amount of such payments and, in the case of each of the immediately preceding clauses (i) and (ii), to the extent such prepayments are funded with Internally Generated Cash (the difference of (A) minus (B), the “ECF Prepayment Amount”); provided that no prepayment shall be required pursuant to this Section 2.03(b)(i) if the ECF Prepayment Amount in any Fiscal Year is less than $5,000,000; provided, further, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is required to prepay or offer to repurchase any Incremental Equivalent Debt or any Refinancing Equivalent Debt, in each case that is secured by the Collateral on a pari passu basis with the Initial Loans, pursuant to the terms of the documentation governing such Indebtedness (such Incremental Equivalent Debt or any Refinancing Equivalent Debt required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time; provided that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount of such ECF Prepayment Amount shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of the Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.03(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Loans in accordance with the terms hereof.
(A) If (x) the Borrower or any of its Restricted Subsidiaries Disposes of any property or assets (other than (X) any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d), (e), (g), (h), (i), (k), (l), (m), (n), (o), (p), (r), (s), (u) and (v) and (Y) so long as the ABL Credit Agreement is in effect, any Disposition of Current Asset Collateral) or (y) any Casualty Event occurs, which results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrower shall prepay on or prior to the date which is ten (10) Business Days after the date of the realization or receipt of such Net Cash Proceeds, subject to clause (b)(v) of this Section 2.03, an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds realized or received; provided, that if at the time that any such prepayment would be required, the Borrower is required to prepay or offer to repurchase any Other Applicable Indebtedness, then the Borrower may apply such portion of such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time; provided that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of the Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.03(b)(ii)(A) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Loans in accordance with the terms hereof; provided, further, that no prepayment shall be required pursuant to this Section 2.03(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.03(b)(ii)(B).
(B) With respect to any Net Cash Proceeds realized or received with respect to any Disposition (other than any Disposition specifically excluded from the application of Section 2.03(b)(ii)(A)) or any Casualty Event, at the option of the Borrower, the Borrower may reinvest all or any portion of such Net Cash Proceeds in assets useful for its business (including to make Permitted Acquisitions) within (x) eighteen (18) months following receipt of such Net Cash Proceeds or (y) if the Borrower enters into a legally binding commitment to reinvest such Net Cash Proceeds within eighteen (18) months following receipt thereof, within the later of (1) eighteen (18) months following receipt thereof and (2) one hundred and eighty (180) days of the date of such legally binding commitment; provided that upon receipt of any such Net Cash Proceeds, the Borrower or applicable Restricted Subsidiary shall deposit such Net Cash Proceeds into the Asset Sale Proceeds Pledged Account and such Net Cash Proceeds shall remain in the Asset Sale Proceeds Pledged Account until reinvested pursuant to this clause (b)(ii)(B) or applied to prepay the Loans in accordance with this Section 2.03(b)(ii) and provided, further, that if any Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election, and subject to clauses (iv) and (v) of this Section 2.03(b), an amount equal to any such Net Cash Proceeds shall be applied within five (5) Business Days after the Borrower reasonably determines that such Net Cash Proceeds are no longer intended to be or cannot be so reinvested to the prepayment of the Loans as set forth in this Section 2.03.
(iii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness (other than Indebtedness A) not expressly permitted to be incurred or issued pursuant to Section 7.03 or (except Credit Agreement B) that constitutes Refinancing Indebtedness)Loans (or Refinancing Equivalent Debt) resulting in Net Proceeds (as opposed to such Refinancing Loans or Refinancing Equivalent Debt arising out of an exchange of existing Loans for such Refinancing Loans or Refinancing Equivalent Debt), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Loans equal to 100.00100% of all Net Cash Proceeds received therefrom on or prior to the gross cash proceeds received date which is five (5) Business Days after the receipt of such Net Cash Proceeds.
(iv) Each prepayment of Loans pursuant to Section 2.03(b) (A) shall be applied either (x) ratably to each Class of Loans then outstanding or (y) as requested by the Borrower in the notice delivered pursuant to clause (vi) below, to any Class or any Classes of its Restricted Subsidiaries from any Loans with a Maturity Date preceding the Maturity Date of the remaining Classes of Loans then outstanding, (B) shall be applied, with respect to each such Indebtedness less all reasonable Class for which prepayments will be made, in a manner determined at the discretion of the Borrower in the applicable notice and, if not specified, in direct order of maturity to repayments thereof required pursuant to Section 2.05 and customary out-of-pocket legal(C) shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Loans, underwriting and other feessubject to clause (vi) of this Section 2.03(b). Notwithstanding clause (A) above, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof in the case of prepayments pursuant to Section 2.03(b)(iii), such prepayment shall be applied in accordance with this clause (iii) solely to those applicable Classes of Loans selected by the Borrower and specified in the applicable Refinancing Amendment or such Restricted Subsidiarynotice and (2) any Incremental Amendment or Refinancing Amendment may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Loans established thereunder.
(v) Notwithstanding any other provisions of this Section 2.03(b), (A) to the extent that any or all of the Net Cash Proceeds of any Disposition by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.03(b)(ii) (a “Foreign Disposition”), the Net Cash Proceeds of any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”), or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such prepayments (Net Cash Proceeds or Excess Cash Collateralization) Flow so affected will not be required to be applied to repay Loans at the times provided in this Section 2.03(b) but may be retained by the applicable Foreign Subsidiary so long, but only so long, as set forth the applicable local law will not permit repatriation to the United States (the Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Loans pursuant to this Section 2.03(b) to the extent provided herein and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Disposition, any Foreign Casualty Event or Excess Cash Flow attributable to Foreign Subsidiaries would have a material adverse tax cost consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in this Section 2.03(b) but may be retained by the applicable Foreign Subsidiary.
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made by the Borrower pursuant to clauses (vi) through (iii) of this Section 2.03(b) at least two (2) Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made by the Borrower. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Loans required to be made pursuant to clauses (i), (ii) and (viiiii) below).
of this Section 2.03(b) by providing written notice (iieach, a “Rejection Notice”) In to the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) Administrative Agent and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days 5:00 p.m. one Business Day after the end date of such Fiscal Year, prepay an aggregate Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the Term mandatory repayment of Loans equal to (A) be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the ECF Percentage Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such Consolidated Excess Cash Flow for mandatory prepayment of Loans. Any Declined Proceeds shall be offered to the Lenders not so declining such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured prepayment on a pari passu pro rata basis in accordance with the Liens securing amounts of the Obligations hereunder, in each case, made during such Fiscal Year or after the end Loans of such Fiscal Year and prior Lender (with such non-declining Lenders having the right to decline any prepayment with Declined Proceeds at the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, time and in the case of all such prepayments, to manner specified by the Administrative Agent). To the extent that such prepayments are financed with internally generated cash non-declining Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amountremaining Declined Proceeds, the “Excess Cash Flow AmountBorrower Retained Prepayment Amounts”) to be applied as set forth in clauses (v) and (vii) below).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Mattress Firm Holding Corp.)
Mandatory. (i) Upon The Borrower shall, on the earlier of two Business Days after the date of delivery of the annual financial statements required pursuant to Section 5.03(c) for each Fiscal Year of the Borrower (commencing with Fiscal Year 1998) or 120 days following the end of each such Fiscal Year (such date with respect to each Fiscal Year being the "Special Prepayment Date" for such Fiscal Year) prepay an aggregate principal amount of the Advances then outstanding equal to 50% of Excess Cash Flow for such Fiscal Year. Prepayment of Advances made pursuant to this Section 2.06(b)(i) shall be first applied to the Term Loan Balloon Installment, second applied ratably to the remaining unpaid installments of the Term Loan Advances, and third applied to the Revolving Credit Facility and any outstanding Competitive Bid Advances as set forth in clause (B) of subparagraph (viii) below; provided, however, that if the Debt to Earnings Ratio is at Level 1, 2 or 3 (as such Levels are specified in the definition of Applicable Margin in Section 1.01) at the end of any Fiscal Year, the Borrower shall not thereafter be required to make further prepayments pursuant to clause third above.
(ii) The Borrower shall, within five Business Days following the date of receipt by the Borrower or any of its Domestic Subsidiaries of the Net Cash Proceeds from the sale, lease, transfer or other disposition of any assets of the Borrower or any of its Domestic Subsidiaries pursuant to clause (iii), (iv), (v) or (vii) of Section 5.02(d), prepay an aggregate principal amount of the Advances then outstanding in an amount equal to the amount of such Net Cash Proceeds; provided, however, that no prepayment shall be required under this subparagraph (ii) in respect of any such Net Cash Proceeds received during any Fiscal Year (other than Net Cash Proceeds from the sale, lease, transfer or other disposition of interests in real property, prepayment in respect of which shall be made as provided above) unless, at the time of receipt of such Net Cash Proceeds, the aggregate amount of such Net Cash Proceeds received during such Fiscal Year as to which no prepayment has been made under this subparagraph (ii) is equal to or greater than $10,000,000, in which case prepayment in respect of all such Net Cash Proceeds shall be made within five Business Days after receipt of the most recent payment thereof. Prepayment of Advances pursuant to this subparagraph (ii) shall be applied as set forth in subparagraph (viii) below.
(iii) The Borrower shall, within one Business Day following the date of receipt by the Borrower or any of its Subsidiaries of the Net Cash Proceeds from (A) the sale or issuance by the Borrower of any capital stock or other ownership or profit interest, any securities convertible into or exchangeable for capital stock or other ownership or profit interest or any warrants, rights or options to acquire capital stock or other ownership or profit interest (other than any stock or stock options or warrants or derivative rights in respect thereof (including, without limitation, restricted stock, stock appreciation rights and phantom stock) issued to the officers, directors or employees of the Borrower and its Subsidiaries pursuant to any employee benefit plan or program or compensation plan for non-employee directors, including, without limitation, employee stock purchase plans, qualified or non-qualified plans of deferred compensation, 401(K) plans, or similar programs for employees and non-employee directors), or (B) the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Debt pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)5.02(b)(xvi), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations the Advances then outstanding equal to 100.00% the amount of the gross cash proceeds received by the Borrower or any such Net Cash Proceeds. Prepayment of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated Advances pursuant to be incurred within ninety this subparagraph (90iii) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to shall be applied as set forth in clauses subparagraph (viii) below.
(iv) The Borrower shall, on or before the Tender Offer Termination Date, prepay an aggregate principal amount of the Advances then outstanding in an amount equal to the Tender Offer Reserve minus the amount paid by the Borrower on or before the Tender Offer Termination Date (and after the Closing Date) to redeem, repurchase or repay any of the Borrower's Existing Senior Debentures. Prepayment of Advances pursuant to this subparagraph (iv) shall be applied as set forth in subparagraph (viii) below.
(v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the The Borrower shall, no later than one-hundred-twenty-five (125) days after on or before the end of such Special Prepayment Date for each Fiscal Year, prepay an aggregate principal amount of the Term Loans Advances then outstanding in an amount equal to the sum of (A) the ECF Percentage of such Consolidated Excess Net Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with Proceeds received by the Liens securing the Obligations hereunder, in each case, made Borrower during such Fiscal Year from any and all Extraordinary Receipts received by or after paid to or for the end account of the Borrower or any of its Subsidiaries and not otherwise included in subparagraphs (ii), (iii) and (iv) above, and (B) the Net Cash Proceeds received by the Borrower or any of its Subsidiaries during such Fiscal Year and prior to from the date such Consolidated Excess Cash Flow prepayment is due (in the case sale, lease, transfer or other disposition of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash assets of the Borrower or any such Subsidiary, other than any such Net Cash Proceeds in respect of which prepayment has been made pursuant to subparagraph (and not from ii) above (provided that no prepayment shall be required under this clause (B) if the proceeds aggregate amount of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of Net Cash Proceeds received during such Fiscal Year by the Borrower and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted its Subsidiaries from the Excess Cash Flow Amount in any subsequent periodsale, lease, transfer or other disposition of assets is less than $10,000,000). Any prepayment pursuant to this clause (v) (such amount, the “Excess Cash Flow Amount”) to shall be applied as set forth in clauses subparagraph (vviii) below.
(vi) The Borrower shall, on each Business Day, prepay (for application pursuant to clause (B) of subparagraph (viii) below) the Revolving Credit Facility and any outstanding Competitive Bid Advances equal to the amount by which (A) the sum of the aggregate principal amount of the Revolving Credit Advances, Competitive Bid Advances and Letter of Credit Advances then outstanding plus the aggregate Available Amount of all Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility on such Business Day.
(vii) belowThe Borrower shall, on each Business Day, pay to the Agent for deposit in the L/C Cash Collateral Account an amount (if any) necessary to cause the aggregate amount on deposit in such Account to equal the amount by which the aggregate Available Amount of all Letters of Credit then outstanding exceeds the Letter of Credit Facility on such Business Day.
Appears in 1 contract
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))The Appropriate Borrowers shall, the Borrower shall prepay (or Cash Collateralizeon each Business --------- Day, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).prepay:
(iiA) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans Advances comprising part of the same Term Borrowings equal to the amount by which (A1) the ECF Percentage aggregate principal amount of all Term Advances outstanding on such Consolidated Business Day exceeds (2) the Term Facility on such Business Day (after giving effect to any permanent reduction thereof pursuant to Section 2.04 on such Business Day), each such prepayment to be applied first, to the next two succeeding principal repayment installments of the Term Facility in direct order of maturity until such principal repayment installments are repaid in full and second, to the remaining principal repayment installments of the Term Facility on a pro rata basis; and
(B) an aggregate principal amount of the Revolving Credit Advances comprising part of the same Revolving Credit Borrowings equal to the amount by which (1) the aggregate principal amount of all Revolving Credit Advances outstanding on such Business Day exceeds (2) the Revolving Credit Facility on such Business Day (after giving effect to any permanent reduction thereof pursuant to Section 2.04 on such Business Day), each such prepayment to be applied first, to the next two succeeding scheduled commitment reduction installments of the Revolving Credit Facility in direct order of maturity until such scheduled commitment reduction installments are reduced in full and second, to the remaining scheduled commitment reduction installments of the Revolving Credit Facility on a pro rata basis. Any Excess Cash Flow or Net Cash Proceeds remaining after the application thereof to the prepayment of Advances outstanding on the date of receipt thereof pursuant to clause (iii), (iv) or (v) of Section 2.04(b) and this Section 2.05(b) may be retained by the applicable Borrower for use in its businesses and operations in the ordinary course or as otherwise permitted under the terms of this Agreement.
(ii) Notwithstanding any of the other provisions of this Section 2.05(b), so long as no Default under Section 7.01(a) or 7.01(f) or Event of Default shall have occurred and be continuing, if any prepayment of Eurodollar Rate Advances is required to be made under this Section 2.05(b) other than on the last day of the Interest Period therefor, the Borrower to which such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other IndebtednessEurodollar Rate Advances were made may, in each caseits sole discretion, secured on a pari passu basis with deposit the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case amount of any such Revolving Credit Loans prepayment otherwise required to be made hereunder into the Cash Collateral Account of such Borrower until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or other revolving Indebtedness prepaid, notice to or from such Borrower) to apply such amount to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end prepayment of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount Advances in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowaccordance with this Section 2.05(b).
Appears in 1 contract
Mandatory. (i) Within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrowers shall prepay an aggregate principal amount of Term Loans in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for the fiscal year covered by such financial statements commencing with the fiscal year ending on or about January 3, 2016, minus (B) the sum of (1) the aggregate amount of voluntary principal prepayments of the Loans (except prepayments of (x) Swing Line Loans and (y) Loans under any Revolving Tranche that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches and Loans repurchased pursuant to Dutch Auctions or open market purchases in an amount equal to the discounted purchase price of such Loans paid in respect of such Loans pursuant to such Dutch Auctions or through open market purchases), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness and (2) any amount not required to be applied pursuant to Section 2.05(b)(viii); provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was less than 3.00:1.00 or 2.50:1.00, respectively.
(ii) If (x) the Lux Borrower or any Restricted Subsidiary consummates an Asset Sale, or (y) any Casualty Event occurs, and any transaction or series of related transactions described in the foregoing clauses (x) and (y) results in the receipt by the Lux Borrower or such Restricted Subsidiary of aggregate Net Cash Proceeds in excess of $10,000,000 for any Asset Sale or Casualty Event or $25,000,000 in any fiscal year (any such transaction or series of related transactions resulting in Net Cash Proceeds being a “Relevant Transaction”), (1) the Borrower Representative (on behalf of the Borrowers) shall give written notice to the Administrative Agent thereof promptly after the date of receipt of such Net Cash Proceeds and (2) except to the extent the Borrowers elect in such notice to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrowers shall prepay, subject to Section 2.05(b)(viii) an aggregate principal amount of Term Loans in an amount equal to 100% (as may be adjusted pursuant to the second proviso below) of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof by the Lux Borrower or such Restricted Subsidiary; provided that the Borrowers may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness that is secured by the Collateral on a first lien “equal and ratable” basis with Liens securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I).
(A) Upon the incurrence or issuance by the Lux Borrower or any of its Restricted Subsidiaries Subsidiary of any Refinancing Notes, any Specified Refinancing Term Loans or any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.01, the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loan Tranches in an amount equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Lux Borrower or such Restricted Subsidiary.
(B) Without duplication, upon the receipt by the Lux Borrower or any Restricted Subsidiary of Net Cash Proceeds of the type described in clause (d) of the definition of “Net Cash Proceeds,” the Borrowers shall immediately apply such prepayments (or Cash Collateralization) proceeds to be applied the prepayment of Term Loan Tranches as set forth in clauses (v) and (vii) below)this Section 2.05.
(iiiv) In Upon the event that (a) there shall be Consolidated Excess Cash Flow for incurrence by the Lux Borrower or any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are Restricted Subsidiary of any Term Loans outstanding at the end of such Fiscal YearSpecified Refinancing Debt constituting revolving credit facilities, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, Borrowers shall prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage Tranche of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Lux Borrower or such Restricted Subsidiary.
(v) If for any reason the sum of the Total Revolving Credit Outstandings under any Tranche and the outstanding Specified Refinancing Revolving Loans at any time exceed the sum of the Revolving Tranches then in effect (including after giving effect to any reduction in the Revolving Credit Commitments pursuant to Section 2.06), the Borrowers shall immediately prepay Revolving Tranches and/or loans Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(v) unless after the prepayment in full of the Revolving Tranches and Swing Line Loans the sum of the Total Revolving Credit Outstandings and the outstanding Specified Refinancing Revolving Loans exceed the aggregate Revolving Credit Commitments under such Tranche and commitments to make Specified Refinancing Revolving Loans then in effect.
(vi) Subject to Section 2.17, each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied to each Term Loan Tranche on a pro rata basis (or, if agreed to in writing by the Majority Lenders of a Term Loan Tranche, in a manner that provides for more favorable prepayment treatment of other IndebtednessTerm Loan Tranches, so long as each other such Term Loan 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 Term Loan Tranche receiving less than such Pro Rata Share) (other than a prepayment of (x) Term Loans or Revolving Credit Loans, as applicable, with the proceeds of Indebtedness incurred pursuant to Section 2.18, which shall be applied to the Term Loan Tranche or Revolving Tranche, as applicable, being refinanced pursuant thereto or (y) Term Loans with the proceeds of any Refinancing Notes issued to the extent permitted under Section 7.01(a), which shall be applied to the Term Loan Tranche being refinanced pursuant thereto). Amounts to be applied to a Term Loan Tranche in connection with prepayments made pursuant to this Section 2.05(b) shall be applied to the remaining scheduled installments with respect to such Term Loan Tranche in direct order of maturity. Each prepayment of Term Loans under a Facility pursuant to this Section 2.05(b) shall be applied on a pro rata basis to the then outstanding Base Rate Loans and Eurocurrency Rate Loans under such Facility; provided that, if there are no Declining Lenders with respect to such prepayment, then the amount thereof shall be applied first to Base Rate Loans under such Facility to the full extent thereof before application to Eurocurrency Rate Loans, in each case, secured on case in a pari passu basis with manner that minimizes the Liens securing amount payable by the Obligations hereunder, Borrowers in each case, made during such Fiscal Year or after the end respect of such Fiscal Year and prior prepayment pursuant to the date such Consolidated Excess Cash Flow prepayment is due Section 3.06.
(vii) All prepayments under this Section 2.05 shall be made together with, in the case of any such Revolving Credit Loans or prepayment of a Eurocurrency Rate Loan on a date other revolving Indebtedness prepaidthan the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section 3.06 and, to the extent accompanied applicable, any additional amounts required pursuant to Section 2.05(a)(iv). Notwithstanding any of the other provisions of this Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Rate Loans is required to be made under this Section 2.05(b), other than on the last day of the Interest Period therefor, either Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by a permanent reduction or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b). Upon the relevant commitmentoccurrence and during the continuance of any Event of Default, and the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in the case accordance with this Section 2.05(b).
(viii) Notwithstanding any other provisions of all such prepaymentsthis Section 2.05, to the extent that such prepayments are financed with internally generated cash any or all of the Borrower Net Cash Proceeds of any Disposition by a Foreign Subsidiary (a “Foreign Disposition”) or the Net Cash Proceeds of any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”), in each case giving rise to a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) are or is prohibited, restricted or delayed by applicable local law from being repatriated to the United States or the Netherlands, (A) the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States or the Netherlands (the Borrowers hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not from later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the proceeds repayment of Indebtedness the Loans pursuant to this Section 2.05 to the extent provided herein and (B) to the extent that the Borrower Representative has determined in good faith that repatriation of any or all of the sale Net Cash Proceeds of any Foreign Disposition, any Foreign Casualty Event or issuance of Equity Interests Excess Cash Flow would have an adverse tax cost consequence (taking into account any foreign tax credit or equity contributionsbenefit actually realized in connection with such repatriation) andwith 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 all such this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments made pursuant to this Section 2.05 (or twelve months after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is duewould have been so required to be applied if it were Net Cash Proceeds), provided that (x) the applicable Borrower shall apply an amount equal to such amount so deducted shall not be deducted from the Net Cash Proceeds or Excess Cash Flow Amount in any subsequent period) (to such amount, the “reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow Amount”had been received by the applicable Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) to or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness of a Foreign Subsidiary, in each case, other than as set forth in clauses (v) mutually agreed by the Borrower Representative and (vii) belowthe Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Ortho Clinical Diagnostics Holdings PLC)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Within ten (other than Indebtedness expressly permitted to be incurred or issued 10) Business Days after financial statements have been delivered pursuant to Section 7.03 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b) (except Credit Agreement Refinancing Indebtedness)such date, the “ECF Payment Date”), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00(A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for the fiscal year covered by such financial statements, commencing with the fiscal year ending December 31, 2018, minus (B) the sum of (1) the aggregate amount of voluntary principal prepayments of the gross Loans (excluding amounts repaid pursuant to Section 2.05(a)(v) in excess of the actual cash proceeds received amount paid in any such repayment), (2) the portion of the Excess Cash Flow for such fiscal year applied to prepay, redeem or purchase other Indebtedness having Pari Passu Lien Priority to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment, redemption or purchase thereof with excess cash flow, in each case on a not more than pro rata basis with the prepayments of Term Loans with Excess Cash Flow for such fiscal year hereunder (subject to each Lender’s option to decline to accept such prepayment pursuant to Section 2.05(c)), in the case of each clauses (1) and (2) above, (I) during such fiscal year (which, in any event, shall not include any designated prepayment pursuant to clause (II) below) and (II) during the period beginning with the day following the last day of such fiscal year and ending on the ECF Payment Date and stated by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) prepaid pursuant to be applied as set forth in clauses (vthis Section 2.05(b)(i)(B)(II) and (vii3) the First Lien ECF Prepayment Amount, in each case other than to the extent that any such prepayment is funded with the proceeds of long-term Indebtedness, or the proceeds of any Asset Sale or other disposition of assets to the extent that, under clause (ii) below, the applicable Loan Party would otherwise have been required or permitted to reinvest the Net Cash Proceeds of such Asset Sale or disposition or to apply such Net Cash Proceeds to the prepayment of Loans; provided that such percentage shall be reduced to (x) 25.0% if the Consolidated Senior Secured Debt Ratio as of the last day of the fiscal year most recently ended prior to the applicable ECF Payment Date was less than 5.25:1.00 and (y) 0% if the Consolidated Senior Secured Debt Ratio as of the last day of the fiscal year most recently ended prior to the applicable ECF Payment Date was less than 4.25:1.00); provided that until the Discharge of Senior Priority Obligations, no mandatory prepayments of Loans shall be required under this Section 2.05(b)(i), except to the extent of mandatory prepayments pursuant to Section 2.05(b)(i) of the First Lien Credit Agreement or the equivalent provision in the documentation governing any other Indebtedness having Senior Lien Priority declined by the lenders thereunder, and only to the extent such mandatory prepayment of Loans is not prohibited by the First Lien Credit Agreement or the documentation governing any other Indebtedness having Senior Lien Priority.
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the The Borrower shall, no later than one-hundred-twenty-five (125in accordance with Section 2.05(b)(vii), 2.05(c) days after the end of such Fiscal Yearand 2.05(d), prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied required by a permanent reduction in Section 7.09(c); provided that until the relevant commitmentDischarge of Senior Priority Obligations, no mandatory prepayments of Loans shall be required under this Section 2.05(b)(ii), pursuant to the terms hereof and in the case of all such prepaymentsSection 7.09, except to the extent that such of mandatory prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) below.pursuant to
Appears in 1 contract
Sources: Second Lien Credit Agreement
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), On each Excess Cash Flow Payment Date the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans Advances comprising part of the same Borrowings and deposit an amount in the Revolving LC Collateral Account in an amount equal to (A) 75% of the ECF Percentage amount of such Consolidated Excess Cash Flow for the Calculation Period corresponding to such Fiscal Year less (B) all voluntary prepayments Excess Cash Flow Payment Date minus the amount of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, Voluntary Prepayments made during such Fiscal Year or after the end of Calculation Period. Each such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidshall be applied ratably first, to the Term B Facility and to the installments thereof in direct order of maturity until such Facility is repaid in full and to any Term Letter of Credit Advance to the extent accompanied by a permanent reduction such Term Letter of Credit Advance has not been repaid or reimbursed in the relevant commitmentaccordance with Section 2.04(d)(ii), and in the case second, (x) if no Event of all such prepaymentsDefault has occurred and is continuing, to the extent that Second Lien Obligations or (y) if an Event of Default has occurred and is continuing, or if such prepayments are financed with internally generated cash of prepayment would have been required to be made under the Borrower (Second Lien Credit Agreement and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior was waived pursuant to the date such Consolidated Excess Cash Flow prepayment is dueterms thereof, provided that such amount so deducted shall not be deducted from to the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied Revolving Credit Facility as set forth in clauses (v) and clause (vii) below.
(ii) (A) If within ten Business Days of the date of receipt of any Asset Sale Proceeds or Equity Proceeds by any Loan Party or any of its Subsidiaries, the Borrower shall not have delivered a Reinvestment Notice in respect thereof, then the Borrower shall prepay an aggregate principal amount of the Advances comprising part of the same Borrowings and deposit an amount in the Revolving LC Collateral Account in an amount equal to the amount of such Asset Sale Proceeds or Equity Proceeds, as the case may be.
Appears in 1 contract
Sources: First Lien Credit Agreement (US Power Generating CO)
Mandatory. (i) For any Excess Cash Flow Period, within ten Business Days after financial statements were required to have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate was required to be delivered pursuant to Section 6.02(a) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrower shall prepay an aggregate principal amount of Term Loans in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for such Excess Cash Flow Period (commencing with the Excess Cash Flow Period ending on December 31, 2023), minus (B) the sum of:
(1) the aggregate amount of voluntary principal prepayments of the Loans, Indebtedness that is pari passu in right of payment and security with the Initial Term Loans or junior in right of payment and security to the Initial Term Loans, Specified Refinancing Debt, Incremental Equivalent Debt and all other secured Indebtedness, in each case made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the relevant Excess Cash Flow Period or, at the option of the Borrower and without duplication, on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par in connection with Permitted Debt Exchanges, repayments of Obligations of any Replaceable Lender or Non-Consenting Lender permitted under Section 3.08, assignments made to Parent or any of its Subsidiaries permitted under this Agreement and open market purchases, with credit given for the actual amount of the cash payment) (except prepayments of Loans under any secured revolving Indebtedness that are not accompanied by a corresponding permanent commitment reduction of such secured revolving Indebtedness), in each case other than to the extent that any such prepayment is funded with the proceeds of long-term Indebtedness (other than any revolving Indebtedness);
(2) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(vii) or (viii),
(3) the amount of Taxes paid and/or capital expenditures either made in cash by the Parent or any of its Restricted Subsidiaries during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period (or, at the Borrower’s option, after the end of the relevant Excess Cash Flow Period but prior to the time such Excess Cash Flow payment is due; provided that to the extent the Borrower exercises such option, such amount shall not be permitted as a reduction against the subsequent Excess Cash Flow Period calculation) and in each case other than to the extent that any such capital expenditures or Taxes are funded with the proceeds of long-term Indebtedness (other than any revolving Indebtedness),
(4) the aggregate amount of cash consideration paid by the Parent or any Restricted Subsidiary (on a consolidated basis) in connection with any Investments, any acquisitions, acquisitions of intellectual property and any deferred payments in connection with any acquisition and Restricted Payments (including, without limitation, any distribution with respect to Taxes, and distributions on equity), crystallized long-term liability amounts other than Indebtedness for which payments are required to be made and make-whole amounts paid in respect of Indebtedness that has been repaid during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period (or, at the Borrower’s option, after the end of the relevant Excess Cash Flow Period but prior to the time such Excess Cash Flow payment is due; provided that to the extent the Borrower exercises such option, such amount shall not be permitted as a reduction against the subsequent Excess Cash Flow Period calculation) and in each case other than to the extent that any such cash consideration is funded with the proceeds of long-term Indebtedness (other than any revolving Indebtedness),
(5) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Section 2.05(b)(i)(B)(5) in respect of prior fiscal years, the aggregate consideration required to be paid in cash by any Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such fiscal year or otherwise budgeted or planned to be paid in cash, in each case, relating to Investments, any acquisitions, acquisitions of intellectual property and any deferred payments in connection with any acquisition, Taxes, capitalized software expenditures or other capital expenditures to be consummated or made during the period of four consecutive fiscal quarters of Parent following the end of such fiscal year, provided that to the extent the aggregate amount of cash actually utilized to finance such Investments and capital expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration or amount otherwise budgeted or planned for such uses, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters, and
(6) the amount of any rental, interest or other payment made or to be made in respect of any lease or license (including Capitalized Lease Obligations) provided there shall be no duplication of amounts deducted from Excess Cash Flow pursuant to this Section 2.05(b)(i)(B)(6) and amounts deducted pursuant to the definition of Consolidated Net Income, provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% if the First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was less than or equal to 2.50:1.00 but greater than 2.25:1.00 or to 0% if the First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was less than or equal to 2.25:1.00, respectively (the amount described in this clause (i), the “ECF Prepayment Amount”); provided further that no prepayment shall be required with respect to any Excess Cash Flow Period to the extent Excess Cash Flow for such period is less than the greater of (x) $20,000,000 and (y) 10.0% of Four Quarter Consolidated EBITDA (and only the amounts in excess thereof shall be required to be prepaid); provided further that, if the First Lien Net Leverage Ratio on a Pro Forma Basis after giving effect to any Excess Cash Flow prepayment would result in the percentage in respect of the applicable Excess Cash Flow Period being reduced to 25% or 0%, then such reduced percentage applicable to the Excess Cash Flow prepayment required to be made shall apply; provided further that if the amount of reductions set forth in clauses (1) through (6) above during the relevant Excess Cash Flow Period exceeds the ECF Prepayment Amount that would have been required on such relevant Excess Cash Flow Period, the amount of such excess shall be deducted from any Excess Cash Flow payment required in subsequent Excess Cash Flow Periods (after calculating the applicable Excess Cash Flow for such Excess Cash Flow Period).
(ii) If any Asset Sale made pursuant to Section 7.04(1) or (2) (or series of related Asset Sales) results in the receipt by the Parent or any Restricted Subsidiary of aggregate Net Cash Proceeds in excess of (i) the greater of (x) $30,000,000 and (y) 15% of Four Quarter Consolidated EBITDA per transaction and (ii) the greater of (x) $100,000,000 and (y) 50% of Four Quarter Consolidated EBITDA per fiscal year (such threshold amounts, the “De-Minimis Amount” and any such event, a “Relevant Transaction”), then except to the extent the Borrower elects to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrower shall prepay, subject to Section 2.05(b)(vii) and (viii), an aggregate principal amount of Term Loans in an amount equal to 100% (provided that such percentage shall be reduced to (i) 50% if at the time of receipt of such Net Cash Proceeds or at any time during the applicable reinvestment period, on a Pro Forma basis after giving effect to such Asset Sale and use of Net Cash Proceeds the First Lien Net Leverage Ratio would be equal to or less than 2.50:1.00, but greater than 2.25:1.00 and (ii) 0% if at the time of receipt of such Net Cash Proceeds or at any time during the applicable reinvestment period, on a Pro Forma basis after giving effect to such Asset Sale and use of Net Cash Proceeds the First Lien Net Leverage Ratio would be equal to or less than 2.25:1.00) of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof (or, within 15 Business Days (i) after the later of the date the threshold referred to above is first exceeded and the date the relevant Net Cash Proceeds are received or (ii) after the Parent or the Borrower elects not to pursue the reinvestment (or an alternative reinvestment) within the period set forth in Section 7.04) by the Parent or such Restricted Subsidiary; provided that the Parent or the Borrower (as applicable) may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness that is secured by the Collateral on a first lien “equal and ratable” basis with Liens securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I); provided, further, that only the amount of Net Cash Proceeds in excess of the De-Minimis Amount for any Asset Sale (or series of related Asset Sales) shall be subject to prepayment pursuant to this Section 2.05(b)(ii) and, in such case, the required prepayment shall be only the amount in excess thereof.
(iii) Upon the incurrence or issuance by the Borrower Parent or any of its Restricted Subsidiaries Subsidiary of any Refinancing Debt, any Specified Refinancing Term Loans or any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))7.01, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loan Tranches in an amount equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary.
(iv) Subject to Section 2.17, each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied among Term Loan Tranches as directed by the Borrower (other than a prepayment of (x) Term Loans with the proceeds of Indebtedness incurred pursuant to Section 2.18, which shall be applied to the Term Loan Tranche being refinanced pursuant thereto or (y) Term Loans with the proceeds of any Refinancing Debt issued or incurred to the extent permitted under Section 7.01(a), which shall be applied to the Term Loan Tranche being refinanced pursuant thereto) and, in the case of a Term Loan Tranche, within a Term Loan Tranche as directed by the Borrower (and absent such prepayments (or Cash Collateralization) direction, in order of direct maturity). Amounts to be applied to a Term Loan Tranche in connection with prepayments made pursuant to this Section 2.05(b) shall be applied (i) first, to interest and fees on each such Term Loan Tranche on a pro rata basis that is accrued and payable at such time and (ii) second, as set forth directed by the Borrower (and absent such direction, to the remaining scheduled installments with respect to such Term Loan Tranche in clauses direct order of maturity). Each prepayment of Dollar Term Loans pursuant to this Section 2.05(b) shall be applied on a pro rata basis to the then outstanding Base Rate Loans and SOFR Loans under such Facility; provided that, if there are no Declining Lenders with respect to such prepayment, then the amount thereof shall be applied first to Base Rate Loans under such Facility to the full extent thereof before application to SOFR Loans, in each case in a manner that minimizes the amount payable by the Borrower in respect of such prepayment pursuant to Section 3.06.
(v) and (vii) belowAll prepayments under this Section 2.05 shall be made together with, to the extent applicable, any amounts required pursuant to Section 2.05(a)(iii).
(iivi) In Notwithstanding any other provisions of this Section 2.05, to the extent that any or all of the Net Cash Proceeds of any Asset Sale by a Subsidiary (a “Foreign Disposition”) giving rise to a prepayment event that (a) there shall be Consolidated pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) are or is prohibited, restricted or delayed by applicable local law, rule or regulation (including, without limitation, financial assistance and corporate benefit restrictions and fiduciary and statutory duties of any directors or officers of such Subsidiaries) from being repatriated to the Borrower or such repatriation or prepayment would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any Fiscal Year (commencing with director or officer), the Fiscal Year ending December 31, 2022) and (b) there are any portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans outstanding at the end times provided in this Section 2.05 but may be retained by the applicable Subsidiary (it being understood and agreed that the Borrower shall be under no obligation to cause or to attempt to cause the applicable Subsidiary to promptly take any actions reasonably required by the applicable local law to permit such repatriation, to monitor any such circumstances or to reserve cash for future repatriation after it has provided notice to the Administrative Agent of such Fiscal Yearprohibition, restriction, delay or risk).
(vii) Notwithstanding any other provisions of this Section 2.05, to the extent that the Borrower has determined in good faith that repatriation of any or all of the Net Cash Proceeds of any Foreign Disposition giving rise to a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) would have an adverse Tax, accounting or regulatory cost or consequence (taking into account any foreign Tax credit or benefit actually realized in connection with such repatriation) 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 Subsidiary.
(viii) Notwithstanding any other provisions of this Section 2.05(b), the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary may make prepayments of Term Loans, loans under required in connection with any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, Indebtedness that is secured on a pari passu basis with the Liens securing Initial Term Loans on a ratable basis based on the Obligations hereunder, in each case, made during such Fiscal Year or after the end outstanding principal amount of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowIndebtedness.
Appears in 1 contract
Sources: Credit Agreement (Farfetch LTD)
Mandatory. (i) Upon Within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing in respect of the incurrence financial statements required to have been delivered pursuant to Section 6.01(a) for the fiscal year ending December 31, 2018) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus, without duplication of any amount deducted from Consolidated Net Income in calculating Excess Cash Flow for such period, (B) the sum of (1) all voluntary prepayments of Term Loans made during such fiscal year pursuant to Section 2.05(a)(vi), in an amount equal to the discounted amount actually paid in cash in respect of the principal amount of such Term Loans during such fiscal year or issuance after year-end and prior to when such Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to ý(x) Section 2.05(a)(v), the actual purchase price paid in cash pursuant to a “Dutch Auction” and (y) open-market purchases pursuant to Section 10.07(l), the actual purchase price paid in cash pursuant to such purchase), (2) all other voluntary prepayments of Term Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent reducing scheduled repayments of principal in subsequent fiscal years, (3) all voluntary prepayments of Revolving Credit Loans, Extended Revolving Credit Loans, Refinancing Revolving Credit Loans and Incremental Revolving Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments, Extended Revolving Credit Commitments, Refinancing Revolving Credit Commitments, Revolving Commitment Increase and/or New Revolving Credit Commitments, as the case may be, are permanently reduced by the amount of such payments, (4) the amount equal to all payments in cash actually paid by the Borrower in connection with the buyback of Loans pursuant to Section 10.07(l) during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, in the case of each of the immediately preceding clauses (1), (2), (3) and (4), to the extent such prepayments are funded with Internally Generated Cash; provided that, to the extent any deduction is made pursuant to the foregoing clauses (1), (2), (3) and (4) after year-end and prior to when such Excess Cash Flow prepayment is due, such prepayment shall not be deducted with respect to the Excess Cash Flow prepayment for the succeeding fiscal year; provided further that the Consolidated First Lien Net Leverage Ratio in the definition of “Applicable ECF Percentage” shall be recalculated to give pro forma effect to any amount referred to in clause (B) above that is paid or otherwise realized or accounted for after the end of the applicable fiscal year but prior to the making of the Excess Cash Flow payment required for such fiscal year. Prepayments pursuant to this Section 2.05(b)(i) shall only be required for any fiscal year if the amount of the Excess Cash Flow for such fiscal year is greater than $15,000,000; provided, further, that, for the avoidance of doubt, only amounts in excess of such $15,000,000 shall be prepaid pursuant to this Section 2.05(b)(i).
(ii) If (1) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets (other than any Disposition of any property or assets permitted by Sections 7.05(a), (b), (c), (d), (e), (g), (h), (i), (l), (m) (except as set forth in the proviso thereof or to the extent such property is subject to a Mortgage), (n), (p), (q), (r) and (s)), or (2) any Casualty Event occurs, which results in the realization or receipt by the Borrower or a Restricted Subsidiary of Net Proceeds, subject to Section 2.05(b)(vi), the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of its Restricted Subsidiaries such Net Proceeds, an aggregate principal amount of Term Loans in an amount equal to 100% of all such Net Proceeds; provided, further, that if at the time that any such prepayment would be required, the Borrower is required to offer to prepay or repurchase Permitted First Priority Refinancing Debt, Incremental Equivalent Debt or Indebtedness incurred pursuant to Section 7.03(v)(i) that, in each case, is secured by a Lien on the Collateral on a pari passu basis with the Obligations, or any Permitted Refinancing of any such Indebtedness, in each case pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Disposition or Casualty Event (other than such Permitted First Priority Refinancing Debt, Incremental Equivalent Debt or Indebtedness expressly incurred pursuant to Section 7.03(v)(i) that, in each case, is secured by a Lien on the Collateral on a pari passu basis with the Obligations (or the Permitted Refinancing of any such Indebtedness) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within five Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) If Holdings or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (A) not permitted to be incurred or issued pursuant to Section 7.03 or (except B) that is intended to constitute Credit Agreement Refinancing Indebtedness))Indebtedness in respect of any Class of Term Loans, the Borrower shall prepay (or Cash Collateralize, as applicable) cause to be prepaid an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00100% of all Net Proceeds received therefrom on or prior to the gross date which is three Business Days after the receipt by Holdings or such Restricted Subsidiary of such Net Proceeds.
(iv) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans and L/C Obligations at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall promptly prepay, or cause to be promptly prepaid, Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(v) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any Excess Cash Flow attributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable material constituent documents, an amount equal to the portion of such Foreign Subsidiary Excess Cash Flow that would be so affected were the Borrower to attempt to repatriate such cash proceeds will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 so long, but only so long, as the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation, even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Foreign Subsidiary Excess Cash Flow will otherwise be subject to repayment under this Section 2.05), 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 Foreign Subsidiary Excess Cash Flow is permissible under the applicable local law or applicable material constituent documents (even if such cash is actually not repatriated), an amount equal to the amount of the Foreign Subsidiary Excess Cash Flow that could be repatriated will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of an amount equal to the additional taxes of the Borrower, its Subsidiaries and the direct and indirect holders of Equity Interests in the Borrower that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any Foreign Subsidiary Excess Cash Flow would have material adverse tax cost consequences for itself or any of its Subsidiaries, an amount equal to such Foreign Subsidiary Excess Cash Flow that would be so affected will not be subject to repayment under this Section 2.05; provided that, on or before the date on which any such Foreign Subsidiary Excess Cash Flow so retained would otherwise have been required to be applied to prepayments pursuant to this Section 2.05, the Borrower apply an amount equal to such Foreign Subsidiary Excess Cash Flow to such prepayments as if such Foreign Subsidiary Excess Cash Flow had been received by the Borrower or any of its Restricted Subsidiaries from any rather than such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Foreign Subsidiary, less the amount of additional Taxes that would have been payable or reserved against if such Foreign Subsidiary Excess Cash Flow had been repatriated (or, if less, the Foreign Subsidiary Excess Cash Flow that would be calculated if received by such prepayments (or Cash Collateralization) to be applied as set forth Foreign Subsidiary); provided, further, that in the case of each of clauses (vi) and (vii) belowii).
, such nonpayment prior to the time such amounts must be repatriated shall not constitute a Default or Event of Default (ii) In the event that (a) there and such amounts shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to available (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less first, to repay local foreign indebtedness, if any, and (B) all voluntary prepayments thereafter, for working capital purposes of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtednessthe Borrower and its Restricted Subsidiaries, in each case, secured subject to the prepayment provisions in this Section 2.05(b)(v)); provided, further, that (A) for purposes of this Section 2.05, Excess Cash Flow shall be deemed allocable to each Foreign Subsidiary, with respect to any period, in an amount equal to (i) the Consolidated EBITDA of such Foreign Subsidiary for such period, divided by (ii) the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period (it being understood and agreed for the avoidance of doubt that such allocation shall exclude any reduction from interest and principal payments in respect of the Obligations) and (B) the Borrower and its Restricted Subsidiaries shall be entitled to reduce Excess Cash Flow owed pursuant to Section 2.05(b)(i) in respect of any Excess Cash Flow Period by the aggregate amount of Excess Cash Flow attributable to Foreign Subsidiaries subject to the limitations and restrictions described above in this Section 2.05(b)(v) for such Excess Cash Flow Period.
(vi) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any or all of the Net Proceeds of any Disposition by a Foreign Subsidiary (“Foreign Disposition”) or the Net Proceeds of any Casualty Event incurred by a Foreign Subsidiary (“Foreign Casualty Event”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable material constituent documents, an amount equal to the Net Proceeds that would be so affected were the Borrower to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 so long, but only so long, as the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Net Proceeds will otherwise be subject to repayment under this Section 2.05), 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 Proceeds is permissible under the applicable local law or applicable material constituent documents, even if such cash is not actually repatriated at such time, an amount equal to the amount of the Net Proceeds will be promptly (and in any event not later than five Business Days) applied (net of an amount equal to the additional taxes of the Borrower, its Subsidiaries and the direct and indirect holders of Equity Interests in the Borrower that would be payable or reserved against and any additional costs that would be incurred as a pari passu basis result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition or Foreign Casualty Event would have material adverse tax cost consequences with respect to such Net Proceeds, an amount equal to such Net Proceeds that would be so affected will not be subject to repayment under this Section 2.05; provided that, on or before the Liens securing date on which any such Net Proceeds so retained would otherwise have been required to be applied to prepayments pursuant to this Section 2.05, the Obligations hereunderBorrower apply an amount equal to such Net Proceeds to such prepayments as if such Net Proceeds had been received by the Borrower rather than such Foreign Subsidiary (or the applicable recipient), less the amount of additional Taxes that would have been payable or reserved against if such Net Proceeds had been repatriated (or, if less, the Net Proceeds that would be calculated if received by such Foreign Subsidiary (or the applicable recipient)); provided, further, that in the case of each of clauses (i) and (ii), nonpayment prior to the time such amounts must be repatriated shall not constitute a Default or Event of Default (and such amounts shall be available (A) first, to repay local foreign indebtedness, if any, and (B) thereafter, for working capital purposes of the Borrower and its Restricted Subsidiaries, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior subject to the date prepayment provisions in this Section 2.05(b)(vi)). For the avoidance of doubt, nothing in this Section 2.05 shall require the Borrower to cause any amounts to be repatriated to the United States (whether or not such Consolidated Excess Cash Flow prepayment is due (amounts are used in or excluded from the case determination of the amount of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such mandatory prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and hereunder).
(vii) below.Except as otherwise provided in any Refinancing Amendment, Extension Amendment or any Incremental Amendment or as otherwise provided herein, (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied ratably to each Class of Term Loans then outstanding (provided that any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be
Appears in 1 contract
Sources: Credit Agreement (Avantor, Inc.)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), 7.03) the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00100% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness therefrom less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) 90 days thereof in connection therewith, within one (1) Business Day following therewith immediately upon receipt thereof by the Borrower or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (vii) and (viiiv) below).
(ii) In the event that Each prepayment (aor Cash Collateralization, as applicable) there of Pro Rata Obligations pursuant to this Section 2.05(b) shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31applied, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidfirst, to the extent accompanied Incremental Term Loans held by a permanent reduction all Incremental Term Loan Lenders in the relevant commitment, and in the case of all such prepayments, accordance with their Applicable Percentages (allocated pro rata to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied principal repayment installments thereof as set forth in clauses the applicable Joinder Agreement), second, any excess after the application of such proceeds in accordance with clause first above, to the Revolving Credit Facility in the manner set forth in clause (viv) of this Section 2.05(b) and third, any excess after the application of such proceeds in accordance with clauses first and second above may be retained by the Borrower. Any prepayment of a Loan pursuant to this Section 2.05(b) shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
(viiiii) belowIf for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Commitments at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) (in an aggregate amount equal to 105% of the face amount thereof) in an aggregate amount sufficient to reduce the Total Revolving Credit Outstandings to the aggregate Revolving Credit Commitments. If for any reason the Outstanding Amount of L/C Obligations at any time exceed the Letter of Credit Sublimit at such time, the Borrower shall immediately prepay L/C Borrowings and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce the Outstanding Amount of L/C Obligations to the Letter of Credit Sublimit. If for any reason the Outstanding Amount of Swing Line Loans at any time exceeds the Swing Line Sublimit at such time, the Borrower shall immediately prepay Swing Line Loans in an aggregate amount sufficient to reduce the Outstanding Amount of Swing Line Loans to the Swing Line Sublimit.
(iv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans held by all Revolving Credit Lenders in accordance with their Applicable Percentages, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable. Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b) shall be applied ratably to the outstanding Revolving Credit Loans. Amounts to be applied pursuant to this Section 2.05(b) to the mandatory prepayment of Incremental Term Loans and Revolving Credit Loans shall be applied, as applicable, first to reduce outstanding Base Rate Loans and any amounts remaining after such application shall be applied to prepay Eurodollar Rate Loans.
Appears in 1 contract
Mandatory. (i) Upon For any Excess Cash Flow Period, within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the incurrence related Compliance Certificate has been delivered pursuant to Section 6.02(a) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrower shall prepay an aggregate principal amount of the Term Loans for which the Borrower is responsible in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for such Excess Cash Flow Period, minus (B) the sum of (without duplication):
(1) the aggregate amount of voluntary principal prepayments of the Loans or issuance Indebtedness that is pari passu in right of payment and security with the Initial Term Loans, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment, and prepayments in connection with the lender replacement provisions (including pursuant to Section 3.08)) (except prepayments of Loans under any Revolving Tranche or other revolving Indebtedness that is pari passu in right of payment and security with the Revolving Credit Commitments that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(2) the aggregate amount of voluntary principal prepayments of the Second Lien Loans or Indebtedness that is pari passu in right of payment and security with the Second Lien Loans, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment, and prepayments in connection with the lender replacement provisions) (except prepayments of Second Lien Loans under any revolving tranche or other revolving Indebtedness that is pari passu in right of payment and security with the Second Lien Loans that are not accompanied by a corresponding permanent commitment reduction of the revolving tranches), in each case other than to the extent that any such prepayment is funded with the proceeds of Second Lien Credit Agreement Refinancing Indebtedness or any other long-term Indebtedness,
(3) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii) or (ix),
(4) the portion of the Excess Cash Flow applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase Indebtedness that is pari passu in right of payment and security with the Initial Term Loans (in each case, to the extent the documentation governing such Indebtedness requires such a prepayment or repurchase thereof with Excess Cash Flow, in each case in an amount not to exceed the product of (x) the amount of Excess Cash Flow and (y) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and all such other Indebtedness), in each case other than to the extent that any such prepayment is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(5) the amount of capital expenditures either made in cash by the Borrower or any of its Restricted Subsidiaries during the period commencing on the first day of any Indebtedness (the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period and in each case other than Indebtedness expressly permitted to the extent that any such capital expenditures are funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(6) the aggregate amount of cash consideration paid by the Borrower or any Restricted Subsidiary (on a consolidated basis) in connection with any Investments (including, without limitation, any acquisitions, acquisitions of intellectual property and any deferred payments in connection with the Acquisition) during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the applicable Excess Cash Flow Period and in each case other than to the extent that any such cash consideration is funded with the proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness,
(7) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow pursuant to this Section 2.05(b)(i)(B)(7) in respect of prior fiscal years, the aggregate consideration required to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross paid in cash proceeds received by the Borrower or any of its the Restricted Subsidiaries from pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such fiscal year relating to Investments (including, without limitation, any such Indebtedness less all reasonable acquisitions, acquisitions of intellectual property and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred any deferred payments in connection with the Acquisition) or reasonably anticipated made pursuant to Section 7.05 or capital expenditures to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by consummated or made during the period of four consecutive fiscal quarters of the Borrower or following the end of such Restricted Subsidiaryfiscal year, (provided that to the extent the aggregate amount of cash actually utilized to finance such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) Investments and (vii) below).
(ii) In capital expenditures during such period of four consecutive fiscal quarters is less than the event that (a) there Contract Consideration, the amount of such shortfall shall be Consolidated added to the calculation of Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end period of four consecutive fiscal quarters; provided that such Fiscal Year, prepay an aggregate principal amount percentage in respect of the Term Loans equal to (A) the ECF Percentage of such Consolidated any Excess Cash Flow for Period shall be reduced to 25% or 0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Fiscal Year Excess Cash Flow Period relates was equal to or less than 4.40:1.00 or 3.90:1.00, respectively (B) all voluntary prepayments the amount described in this clause (i), the “ECF Prepayment Amount”); provided, further that no prepayment shall be required with respect to any Excess Cash Flow Period unless the ECF Prepayment Amount exceeds the greater of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness$10,000,000 and 6% of Four Quarter Consolidated EBITDA and, in each such case, secured the ECF Prepayment Amount shall be the amount in excess thereof; provided, further that, if the Consolidated First Lien Net Leverage Ratio on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or Pro Forma Basis after the end of such Fiscal Year and prior giving effect to the date such Consolidated any Excess Cash Flow prepayment is due (would result in the case percentage in respect of any the applicable Excess Cash Flow Period being reduced to 25% or 0%, then such Revolving Credit Loans or other revolving Indebtedness prepaid, reduced percentage applicable to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) required to be applied as set forth in clauses (v) and (vii) belowmade shall apply.
Appears in 1 contract
Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)
Mandatory. Subject to the provisions of the Intercreditor Agreement and subject to the prior payment and cash collateralization of the First Lien Obligations in accordance with the terms of the First Lien Facilities:
(i) Upon The Borrower shall, on the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day 120th day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such each Fiscal Year, prepay an aggregate principal amount of the Term Loans Advances comprising part of the same Borrowings in an amount equal to (A) 75% of the ECF Percentage amount of such Consolidated Excess Cash Flow for such Fiscal Year (provided that, (A) to the extent the Leverage Ratio for such Fiscal Year shall be less than 5.50:1.00 but equal to or greater than 4.00:1.00, such amount shall be reduced to 50% of Excess Cash Flow for such Fiscal Year, and (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with to the Liens securing extent the Obligations hereunder, in each case, made during Leverage Ratio for such Fiscal Year or after the end shall be less than 4.00:1.00, such amount shall be reduced to 0% of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow for such Fiscal Year). Each such prepayment is due shall be applied to reduce the principal amount of the outstanding Advances of each of the Lenders on a pro rata basis based upon the outstanding Advances owing to each such Lenders.
(ii) The Borrower shall, if at such time the First Lien Obligations have been paid and cash collateralized in full, on the case date of receipt of any such Revolving Credit Loans Net Cash Proceeds by any Loan Party or any of its Subsidiaries from (A) the sale, lease, transfer or other revolving Indebtedness prepaiddisposition of any assets of any Loan Party or any of its Subsidiaries, to (B) the extent accompanied incurrence or issuance by a permanent reduction in the relevant commitmentany Loan Party or any of its Subsidiaries of any Debt, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or C) the sale or issuance of any Equity Interests (including, without limitation, the receipt of any capital contribution) by any Loan Party or equity contributionsany of its Subsidiaries and (D) andany Extraordinary Receipts received by or paid to or for the account of any Loan Party or any of its Subsidiaries and not otherwise included in clause (A), (B) or (C) above, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to 100% of the amount of such Net Cash Proceeds in the case of all clauses (A), (B), (C) and (D). Each such prepayment shall be applied to reduce the principal amount of the outstanding Advances of each of the Lenders on a pro rata basis based upon the outstanding Advances owing to each such Lenders.
(iii) All prepayments under this subsection (b) shall be made after the end of such Fiscal Year and prior together with accrued interest to the date of such Consolidated Excess Cash Flow prepayment is dueon the principal amount prepaid, provided together with any amounts owing pursuant to Section 9.04(c). If any payment of Eurodollar Rate Advances otherwise required to be made under Section 2.06(b) would be made on a day other than the last day of the applicable Interest Period therefor, the Borrower may direct the Administrative Agent to (and if so directed, the Administrative Agent shall) deposit such payment in the Collateral Account until the last day of the applicable Interest Period at which time the Administrative Agent shall apply the amount of such payment to the prepayment of such Advances; provided, however, that such amount so deducted Advances shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) continue to be applied bear interest as set forth in clauses (v) and (vii) belowSection 2.07 until the last day of the applicable Interest Period therefor.
Appears in 1 contract
Mandatory. (i) The aggregate Initial Term Commitments shall be automatically and permanently reduced to zero on the earlier to occur of (A) the date of the Initial Term Borrowing and (B) the Termination Date. The aggregate Term B Commitments shall be automatically and permanently reduced to zero upon the occurrence of the Term Borrowing pursuant to Section 2.01(a)(ii) on the First Amendment Effective Date. The aggregate Term C Commitments shall be automatically and permanently reduced to zero upon the occurrence of the Term Borrowing pursuant to Section 2.01(a)(v) on the Second Amendment Effective Date.
(ii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries Subsidiary of any Indebtedness commitments with respect to Specified Refinancing Revolving Loans, the Revolving Credit Commitments of the Lenders of the Tranche of Revolving Credit Loans being refinanced shall be automatically and permanently reduced on a ratable basis by an amount equal to 100% of the aggregate principal amount of such commitments.
(iii) If after giving effect to any reduction or termination of Revolving Credit Commitments under this Section 2.06, or for any other than Indebtedness expressly permitted to reason, (A) the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Revolving Credit Facility at such time, the Letter of Credit Sublimit or the Swing Line Sublimit, as the case may be, shall be incurred automatically reduced by the amount of such excess. and such reduction shall be applied ratably among the L/C Issuers or issued the Swing Line Lenders, as the case may be, pursuant to Section 7.03 their respective Revolving Credit Commitments, (except B) the Total New Initial Revolving Credit Agreement Refinancing Indebtedness))Outstandings exceed the New Initial Revolving Credit Facility, the Borrower shall promptly (x) prepay or cause to be prepaid New Initial Revolving Credit Loans and, after all New Initial Revolving Credit Loans have been prepaid, Swing Line Loans and (or y) after all New Initial Revolving Credit Loans and Swing Line Loans shall have been prepaid, Cash CollateralizeCollateralize Letters of Credit, as applicable) in an aggregate principal amount of Pro Rata Obligations equal necessary to 100.00% of eliminate such excess and (C) the gross cash proceeds received by Total Original Initial Revolving Credit Outstandings exceed the Original Initial Revolving Credit Facility, the Borrower shall promptly prepay or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated cause to be incurred within ninety prepaid (90x) days thereof in connection therewithOriginal Initial Revolving Credit Loans and, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiaryafter all Original Initial Revolving Credit Loans have been prepaid, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) Swing Line Loans and (viiy) below)after all Original Initial Revolving Credit Loans and Swing Line Loans shall have been prepaid, Cash Collateralize Letters of Credit, in an aggregate amount necessary to eliminate such excess.
(iiiv) In The aggregate Original Initial Revolving Credit Commitments shall automatically and permanently be reduced to zero on the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end earlier to occur of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less Termination Date (unless the Closing Date shall have occurred on or before the Termination Date) and (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, the Maturity Date with respect to theOriginal Initial Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses FacilityMaturity Date.
(v) The aggregate New Initial Revolving Credit Commitments shall automatically and permanently be reduced to zero on the earlier to occur of (A) the termination of the Commitments in full pursuant to Section 2.06(a) or 8.02 and (viiB) belowthe New Initial Revolving Credit Maturity Date.
Appears in 1 contract
Sources: Credit Agreement (Tribune Media Co)
Mandatory. (i) Upon Within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing in respect of the incurrence fiscal year ending December 31, 2023) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus, (B) at the option of the Borrower (without duplication of any amount deducted from Consolidated Net Income in calculating Excess Cash Flow for such period) (x) the sum of (1) all voluntary prepayments of Term Loans during such fiscal year or issuance after year-end and prior to the date such Excess Cash Flow prepayment is due, and (2) all voluntary prepayments of Revolving Credit Loans, Extended Revolving Credit Loans, Refinancing Revolving Credit Loans and Incremental Revolving Loans during such fiscal year or after year-end and prior to the date such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments, Extended Revolving Credit Commitments, Refinancing Revolving Credit Commitments and/or Incremental Revolving Loan Commitment, as the case may be, are permanently reduced by the amount of such payments, in the case of each of the immediately preceding clauses (1) and (2), to the extent such prepayments are funded with Internally Generated Cash; provided that, to the extent any deduction is made pursuant to the foregoing clauses (1) and (2) after year-end and prior to the date such Excess Cash Flow prepayment is due, such prepayment shall not be deducted with respect to the Excess Cash Flow prepayment for the succeeding fiscal year, and (y) incremental reserves of the BD Subsidiary in an aggregate amount for any Excess Cash Flow Period equal to the lesser of (1) the amount that is necessary to meet the capital reserve requirements of the BD Subsidiary for such period and (2) $5,000,000.
(ii) If (1) any Consolidated Party Disposes of any property or assets pursuant to Section 7.05(i), (l) or (m), or (2) any Casualty Event occurs, in either case that results in the realization or receipt by a Consolidated Party of Net Proceeds, the Borrower shall cause to be prepaid on or prior to the date that is five Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of its Restricted Subsidiaries such Net Proceeds (or such later time that the Borrower is entitled to reinvest Net Proceeds as provided in the definition of “Net Proceeds”), an aggregate principal amount of Term Loans in an amount equal to 100% of all such Net Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or prepay Permitted Equal Priority Refinancing Debt or any Permitted Refinancing of any such Indebtedness (other than to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations), in each case pursuant to the terms of the documentation governing such Indebtedness expressly with the net proceeds of such Disposition or Casualty Event (such Permitted Equal Priority Refinancing Debt (or the Permitted Refinancing of any such Indebtedness) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within five Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) If any Consolidated Party incurs or issues any Indebtedness after the Restatement Effective Date (A) not permitted to be incurred or issued pursuant to Section 7.03 or (except B) that is intended to constitute Credit Agreement Refinancing Indebtedness))Indebtedness in respect of any Class of Term Loans, the Borrower shall prepay (or Cash Collateralize, as applicable) cause to be prepaid an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andor, in the case of Indebtedness constituting Credit Agreement Refinancing Indebtedness, the applicable Class of Term Loans) in an amount equal to 100% of all such prepayments made after the end of such Fiscal Year and Net Proceeds received therefrom on or prior to the date that is three Business Days after the receipt by such Consolidated Excess Party of such Net Proceeds.
(iv) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans and L/C Obligations at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall promptly prepay Revolving Credit Loans and/or Cash Flow prepayment is due, Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that such amount so deducted the Borrower shall not be deducted from required to Cash Collateralize the Excess Cash Flow L/C Obligations pursuant to this Section 2.05(b)(iv) unless, after the prepayment in full of the Revolving Credit Loans, such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses effect.
(v) Except as otherwise provided in any Refinancing Amendment, Extension Amendment or any Incremental Amendment or as otherwise provided herein, (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied ratably to each Class of Term Loans then outstanding (provided that any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt), (B) with respect to each Class of Term Loans, each prepayment pursuant to clause (ii) or (iii) of this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of such prepayment in direct order of maturity and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(vi) [Reserved]
(vii) belowIn connection with any mandatory prepayments by the Borrower of the Term Loans pursuant to this Section 2.05(b), such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans, Term Benchmark Loans or RFR Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.05(b)(vi), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Term Benchmark Loans or RFR Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05.
Appears in 1 contract
Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued 4. Within five Business Days after financial statements have been delivered pursuant to Section 7.03 6.01(a) (except Credit Agreement Refinancing Indebtedness)commencing in respect of the fiscal year ending December 31, 2016) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) cause to be prepaid an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay in an aggregate principal amount of the Term Loans equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus, (B) at the option of the Borrowers (without duplication of any amount deducted from Consolidated Net Income in calculating Excess Cash Flow for such Fiscal Year less period) (Bx) the sum of (1) all voluntary prepayments of Term Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, and (2) all voluntary prepayments of Revolving Credit Loans, loans under any Incremental Equivalent DebtExtended Revolving Credit Loans, Refinancing Revolving Credit Loans and Incremental Revolving Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent the Revolving Credit Commitments, Extended Revolving Credit Commitments, Refinancing Revolving Credit Commitments and/or loans under other IndebtednessRevolving Commitment Increase, as the case may be, are permanently reduced by the amount of such payments, in the case of each caseof the immediately preceding clauses (1) and (2), to the extent such prepayments are funded with Internally Generated Cash and are in respect of Indebtedness that is secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidFacilities; provided that, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, any deduction is made pursuant to the extent that such prepayments are financed with internally generated cash of the Borrower foregoing clauses (1) and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions(2) and, in the case of all such prepayments made after the year-end of such Fiscal Year and prior to the date when such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted prepayment shall not be deducted from with respect to the Excess Cash Flow Amount prepayment for the succeeding fiscal year and (y) incremental reserves of the BD Subsidiary in an aggregate amount for any subsequent period) (such amount, the “Excess Cash Flow Amount”Period equal to the lesser of (1) the amount that is necessary to be applied as set forth in clauses (v) meet the capital reserve requirements of the BD Subsidiary for such period and (vii2) below$5,000,000.
Appears in 1 contract
Sources: Credit Agreement (Blucora, Inc.)
Mandatory. (ia) Upon The Company shall, upon receipt by the incurrence Parent or the Company of any Net Cash Proceeds from the incurrence, sale or issuance by of the Borrower Take-Out Securities, deposit or cause to be deposited the amount of such Net Cash Proceeds (in an amount not to exceed the amount necessary to pay the Obligations due to the Holders in full) with the Indenture Trustee or any Paying Agent for prepayment of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Securities in accordance with Section 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below902(d).
(iib) In The Company shall, upon receipt by the event that (a) there shall Parent or any Subsidiary of the Parent of the Net Cash Proceeds from any Asset Sale, deposit or cause to be Consolidated Excess deposited the amount of such Net Cash Flow for any Fiscal Year (commencing Proceeds with the Fiscal Year ending December 31, 2022Indenture Trustee or any Paying Agent for prepayment of Securities in accordance with Section 902(d) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in any such Net Cash Proceeds are not used to (i) prepay Senior Outstandings or to cash collateralize letters of credit outstanding under the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash of the Borrower Senior Credit Agreement (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all any revolving credit Indebtedness under the Senior Credit Agreement, with corresponding commitment reductions thereunder) or (ii) in the case where there are no Senior Outstandings, to permanently reduce Senior Commitments, provided that (1) during any Fiscal Year, no such prepayments made after deposit or prepayment shall be required with respect to the end first $5,000,000 in Net Cash Proceeds received in connection with any Asset Sale, (2) no such deposit or prepayment shall be required from Net Cash Proceeds until such Net Cash Proceeds aggregate $1,000,000 or more and (3) the Company shall not be required to so apply such Net Cash Proceeds in the case where such Net Cash Proceeds (in a total amount of up to $50,000,000 in the aggregate since the Effective Date) are used to make a Permitted Acquisition or acquire replacement or fixed assets useful in the business of the Company or any of its Subsidiaries or to effect repairs or replacements of the assets disposed of, in each case within 180 days of the receipt of such Fiscal Year Net Cash Proceeds.
(c) The Company shall, upon receipt by the Parent or any Subsidiary of the Parent of the Net Cash Proceeds from any Debt Issuance, deposit or cause to be deposited the amount of such Net Cash Proceeds with the Indenture Trustee or any Paying Agent for prepayment of Securities in accordance with Section 902(d), to the extent any such Net Cash Proceeds are not used to (i) prepay Senior Outstandings or to cash collateralize letters of credit outstanding under the Senior Credit Agreement (and, in the case of any revolving credit Indebtedness under the Senior Credit Agreement, with corresponding commitment reductions thereunder) or (ii) in the case where there are no Senior Outstandings, to permanently reduce Senior Commitments, provided that no such deposit or prepayment under this Section 902(c) shall be required from Net Cash Proceeds until such Net Cash Proceeds aggregate $1,000,000 or more.
(d) On the Prepayment Date, the Indenture Trustee or any Paying Agent shall use such Net Cash Proceeds deposited with it pursuant to Section 902(a), (b) and prior (c) to prepay Outstanding Securities at the Prepayment Price. Each such prepayment shall be applied ratably to the Securities, and to the remaining installments thereof pro rata. Amounts deposited with the Indenture Trustee or any Paying Agent under this Section 902 may not be withdrawn except to effect such prepayment as provided herein.
(e) All prepayments under this Section 902 shall be made together with accrued interest to the date of such Consolidated Excess Cash Flow prepayment is due, provided that such on the principal amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses (v) and (vii) belowprepaid.
Appears in 1 contract
Sources: Indenture (Warnaco Group Inc /De/)
Mandatory. (i) Commencing with the fiscal year ending December 31, 2016, within the later of (x) five Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b) and (y) ninety-five (95) days after the end of such fiscal year, the Borrower shall prepay an aggregate principal amount of Loans equal to the excess (if any) of (A) the ECF Percentage of Excess Cash Flow for the fiscal year covered by such financial statements over (B) the aggregate principal amount of Term Loans prepaid pursuant to Section 2.05(a) and the aggregate principal amount of optional prepayments of Revolving Credit Loans during such fiscal year (solely to the extent such prepayments are accompanied by a concurrent equivalent permanent reduction in the Revolving Credit Commitments); provided that any such prepayments were not made with proceeds of any Indebtedness, Disposition, equity issuance, Extraordinary Receipts or other proceeds that would not be included in calculating Consolidated EBITDA for the applicable fiscal year (such prepayments to be applied as set forth in clause (v) below).
(ii) If the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 7.05 (other than clause (b) thereof) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within ten (10) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clause (v) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (as certified by the Borrower in writing to the Administrative Agent) and if such Net Cash Proceeds are not so reinvested within such 365-day period but such Net Cash Proceeds are subject to a definitive agreement within such 365-day period to reinvest such Net Cash Proceeds in accordance with this Section 2.05(b)(ii) then the Borrower or such Subsidiary shall have an additional 180 days after the end of the such initial 365-day period to reinvest such Net Cash Proceeds in accordance with this Section 2.05(b)(ii); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be promptly applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)7.02), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Loans equal to 100.00100% of the gross cash proceeds all Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred therefrom within ninety five (90) days thereof in connection therewith, within one (15) Business Day following Days of receipt thereof by the Borrower or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses clause (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries, and not otherwise included in clause (ii) In the event that or (aiii) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Yearthis Section 2.05(b), the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, shall prepay an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case 100% of all Net Cash Proceeds received therefrom within ten (10) Business Days of receipt thereof by the Borrower or such prepayments, to the extent that Subsidiary (such prepayments are financed with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to be applied as set forth in clauses clause (v) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received and if such Net Cash Proceeds are not so reinvested within such 365-day period but such Net Cash Proceeds are subject to a definitive agreement within such 365-day period to reinvest such Net Cash Proceeds in accordance with this Section 2.05(b)(iv) then the Borrower or such Subsidiary shall have an additional 180 days after the end of the such initial 365-day period to reinvest such Net Cash Proceeds in accordance with this Section 2.05(b)(iv); and provided, further, however, that any cash proceeds not so applied shall be promptly applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, in direct order of maturity to the next four principal repayment installments of the Initial Term Facility (and, to the extent provided in the definitive loan documentation therefor in accordance with Section 2.14, of any Incremental Term Loans) and, thereafter, to the remaining scheduled principal installments of the Initial Term Facility (and, to the extent provided in the definitive loan documentation therefor in accordance with Section 2.14, of any Incremental Term Loans) on a pro rata basis; and, second, upon payment in full of all Term Loans, to the Revolving Credit Facility (without permanent reduction of the Revolving Credit Commitments) in the manner set forth in clause (vii) belowof this Section 2.05(b). Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Except as otherwise provided in Section 2.15, prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations in full; and, in the case of prepayments of the Revolving Credit Facility required pursuant to this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the applicable L/C Issuer or the applicable Revolving Credit Lenders, as applicable.
(viii) Notwithstanding any other provisions of this Section 2.05(b) any mandatory prepayments arising under Section 2.05(b)(ii) or (iv) from the receipt of Net Cash Proceeds from any Disposition or Extraordinary Receipts by any Foreign Subsidiary (each, a “ Foreign Disposition”) or arising under Section 2.05(b)(i) from Excess Cash Flow directly attributable to Foreign Subsidiaries (“Foreign Excess Cash Flow”) shall not be required to the extent that the repatriation of such Net Cash Proceeds or Foreign Excess Cash Flow would (A) give rise to a material adverse tax consequence or (B) be prohibited or delayed by any requirement of applicable Laws. The Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly file any required forms, obtain any necessary consents and take all similar actions reasonably required by the applicable local Laws to permit such repatriation; provided that if such repatriation of any such affected Net Cash Proceeds or Foreign Excess Cash Flow is later permitted under applicable Laws and can be accomplished without material adverse tax consequences, such repatriation shall be effected as promptly as practicable and such repatriated Net Cash Proceeds or Foreign Excess Cash Flow, as applicable, will be promptly after such repatriation applied to the repayment of the Loans pursuant to this Section 2.05(b) to the extent provided herein.
Appears in 1 contract
Sources: Credit Agreement (Nn Inc)
Mandatory. (i) Upon The Borrower shall, on the 90th day following the end of each Fiscal Year, prepay an aggregate principal amount of the Advances in an amount equal to the relevant Prepayment Percentage at such time of the Excess Cash Flow for such Fiscal Year. Each such prepayment shall be applied ratably first to the Term B Facility and to the installments thereof on a pro rata basis until paid in full and second to the Revolving Credit Facility as set forth in clause (v) below.
(ii) The Borrower shall, on the date of receipt or when otherwise required hereunder of the Net Cash Proceeds by the Borrower or any of its Restricted Subsidiaries from (A) the sale, lease, transfer or other disposition of any assets of the Borrower or any of its Restricted Subsidiaries (other than any sale, lease, transfer or other disposition of assets pursuant to clause (i), (ii) or (iii) of Section 5.02(e)), (B) the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness Debt for Borrowed Money (other than Indebtedness expressly permitted to be Debt incurred or issued pursuant to Section 7.03 5.02(b)(i)-(ii)) and (except Credit Agreement Refinancing Indebtedness)), C) any Extraordinary Receipt received by or paid to or for the account of the Borrower shall or any of its Restricted Subsidiaries and not otherwise included in clause (A) or (B) above, prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations the Advances comprising part of the same Borrowings in an amount equal to 100.00% the amount of such Net Cash Proceeds. Each such prepayment shall be applied ratably first to the Term Loan B Facility and to the installments thereof on a pro rata basis until paid in full and second to the Revolving Credit Facility as set forth in clause (v) below.
(iii) The Borrower shall, on the date of receipt or when otherwise required hereunder of the gross cash proceeds received Net Cash Proceeds by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred the sale or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof issuance by the Borrower or such any of its Restricted SubsidiarySubsidiaries of any Equity Interests (including, without limitation, receipt of any capital contribution (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) belowother than from a Loan Party).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year), prepay an aggregate principal amount of the Term Loans Advances comprising part of the same Borrowings in an amount equal to (A) during the ECF Percentage first six months following the Closing Date, 100% of such Consolidated Excess Net Cash Flow for such Fiscal Year less Proceeds (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepaymentsor, to the extent that the Borrower is applying such prepayments are financed with internally generated cash Net Cash Proceeds to the repayment or prepayment of Debt in respect of the Borrower (and not from Mezzanine Facility, the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end percentage of such Fiscal Year Net Cash Proceeds (not to be less than 50%) not so applied) and prior (B) thereafter, (1) at any time at which the Leverage Ratio for the most recently ended fiscal quarter is greater than 1.50:1, 100% of such Net Cash Proceeds and (2) otherwise, 0% of such Net Cash Proceeds. Each such prepayment shall be applied ratably first to the date such Consolidated Excess Cash Flow prepayment is due, provided that such amount so deducted shall not be deducted from Term Loan B Facility and to the Excess Cash Flow Amount installments thereof on a pro rata basis until paid in any subsequent period) (such amount, full and second to the “Excess Cash Flow Amount”) to be applied Revolving Credit Facility as set forth in clauses clause (v) below.
(iv) The Borrower shall, on the date of receipt or when otherwise required hereunder of Net Litigation Proceeds by the Borrower or any of its Restricted Subsidiaries, prepay an aggregate principal amount of the Advances in an amount equal to the relevant Prepayment Percentage at such time of such Net Litigation Proceeds. Each such prepayment shall be applied ratably first to the Term B Facility and to the installments thereof on a pro rata basis until paid in full and second to the Revolving Credit Facility as set forth in clause (viiv) below.
Appears in 1 contract
Sources: Credit Agreement (Headwaters Inc)