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 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 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 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 (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 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) 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 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) 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 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 (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, 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 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) 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) 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) [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) 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 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) 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 Each Lender’s Commitment shall automatically be reduced by the incurrence amount of each Loan made by such Lender, such reduction to be effective immediately following the making of such Loan by such Lender.
(ii) The Commitments shall automatically terminate in full on the Availability End Date unless funded on or issuance by prior to the Availability End Date. Additionally, any remaining Aggregate Commitments outstanding on the second Funding Date will terminate in full on the second Funding Date after the funding of any Loans on such second Funding Date.
(iii) In the event that the Borrower actually receives any Net Cash Proceeds arising from any Equity Issuance or the Borrower or any of its Restricted Subsidiaries of actually receives any Indebtedness Net Cash Proceeds (other than Indebtedness expressly permitted Restricted Net Cash Proceeds) arising from any Debt Issuance or Asset Sale, in each case after the Effective Date and such Net Cash Proceeds are received:
(A) after the Closing Date, then, subject to be incurred or issued pursuant to Section 7.03 clause (except Credit Agreement Refinancing Indebtedness))c) below, the Borrower Aggregate Commitments shall prepay (or Cash Collateralize, as applicable) automatically be reduced in an aggregate principal amount of Pro Rata Obligations equal to 100.00100% of the gross cash proceeds received Euro Equivalent amount (determined as of the date of receipt of such Net Cash Proceeds) of such Net Cash Proceeds, effective on the date of receipt 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 Subsidiary 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 Net Cash Flow for such Fiscal Year less Proceeds; or
(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 Closing Date, then the Aggregate Commitments shall be reduced pursuant to the terms of the Cash Flow prepayment is due (Confirmation Agreement; provided that, in the case of any such Revolving Credit Loans Net Cash Proceeds arising from one or other revolving Indebtedness prepaidmore Equity Issuances, Debt Issuances or Asset Sales, any reduction of the Aggregate Commitments pursuant to clause (A) or clause (B) above prior to the extent Closing Date shall take effect only upon the crediting of such Net Cash Proceeds to a Blocked Account (as defined in the Cash Confirmation Agreement). The Borrower shall promptly (and not later than the date of receipt thereof) notify the Administrative Agent of the receipt by the Borrower or, as applicable, any Subsidiary, of such Net Cash Proceeds from any Equity Issuance, Debt Issuance or Asset Sale, and such notice shall be 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 reasonably detailed calculation of the Net Cash Proceeds. Each reduction of the Aggregate Commitments shall be applied ratably to reduce the Commitments of each Lender.
(iv) In the event that the Borrower (or any Subsidiary enters into any Qualifying Bank Facility during the period commencing on the Effective Date and not from ending on the proceeds last day of Indebtedness or the sale or issuance Availability Period, then the Commitments then outstanding shall be automatically reduced in an amount equal to 100% of Equity Interests or equity contributions) and, in the case of all aggregate commitments under such prepayments made after the end of such Fiscal Year and prior to Qualifying Bank Facility on the date of effectiveness of the definitive documentation for such Consolidated Excess Cash Flow prepayment is dueQualifying Bank Facility. The Borrower shall promptly notify the Administrative Agent in writing of the entry by the Borrower, provided that or, as applicable, any Subsidiary, into 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) belowQualifying Bank Facility.
Appears in 2 contracts
Sources: Bridge Credit Agreement (Uber Technologies, Inc), Bridge Credit Agreement (Uber Technologies, Inc)
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 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 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) 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 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 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, 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 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 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 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 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 The Company shall prepay (or Cash Collateralize, the Committed Loans as applicable) hereinafter provided in an aggregate principal amount of Pro Rata Obligations equal to 100.00100% of the gross cash proceeds Net Cash Proceeds received by any Loan Party from all Involuntary Dispositions with respect to Collateral within five (5) days of the Borrower date of receipt of such Net Cash Proceeds with respect to such Involuntary Disposition; provided, however, that, with respect to an Involuntary Disposition of the type described in clause (a) of such definition, so long as no Default shall have occurred and be continuing and such casualty occurs prior to November 17, 2026, all or any portion 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 Net Cash Proceeds shall not be required to be incurred so applied at the election of the Company (as notified by the Company to the Administrative Agent) to the extent such Loan Party reinvests such Net Cash Proceeds in restoration or repair of the applicable loss, destruction or damage of such Collateral within ninety 180 days after the receipt of such Net Cash Proceeds (90) days thereof in connection therewithor, if a commitment for such reinvestment has been made within such 180 day period, within one (1) Business Day following 360 days after the receipt thereof by of such Net Cash Proceeds); provided that if such Net Cash Proceeds shall have not been so reinvested shall be immediately applied to prepay the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below)Committed Loans.
(ii) In The Company shall prepay the event that Committed Loans in connection with a Property Substitution or Prepayment Release in the amounts, and to the extent required, pursuant to Section 2.19.
(aiii) there shall be Consolidated Excess Cash Flow If for any Fiscal Year reason the Outstanding Amount of all Revolving Loans at any time exceeds the Aggregate Revolving Commitments then in effect, the Company shall immediately prepay Revolving Loans in an aggregate amount equal to such excess.
(commencing iv) With respect to any Mortgaged Property for which an “as completed” valuation was obtained in calculating the Initial Appraised Value, to the extent a lesser appraised value is given to such Mortgaged Property in accordance with the Fiscal Year ending December 31definition of “Initial Appraised Value”, 2022the Company shall prepay the Committed Loans in an amount equal to 80% of such difference, as reasonably determined by the Administrative Agent and stated in writing to the Company; provided that the amount of such prepayment shall not exceed an amount such that, after giving effect to such adjustment of the Initial Appraised Value of the applicable Mortgaged Property, the Aggregate Outstanding Loan Value (after giving effect to such prepayment amount, if any) does not exceed the Aggregate Loan Cap in effect at such time.
(v) Each prepayment of Loans pursuant to clauses (i) and (biv) there are any Term Loans outstanding at of this Section 2.05(b) shall be applied, first, ratably to 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 remaining principal amount repayment installments of the Term Loans equal to and, if applicable, the Incremental Term Loan (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 including any payment due on the Maturity Date) in inverse order of maturity, and second, to outstanding Revolving Loans (with a pari passu basis with corresponding reduction of the Liens securing Revolving Commitments in such amount, regardless of the Obligations hereunderamount of Revolving Loans outstanding at such time). Each prepayment of Loans pursuant to clause (ii) of this Section 2.05(b) shall be applied, first, ratably to the remaining principal repayment installments of the Term Loans and, if applicable, the Incremental Term Loan (in each case, made during such Fiscal Year or after including any payment due on the end of such Fiscal Year Maturity Date) on a pro rata basis, 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 prepaidsecond, to the extent accompanied by outstanding Revolving Loans (with a permanent corresponding 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, Revolving Commitments 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, regardless of the “Excess Cash Flow Amount”amount of Revolving Loans outstanding at such time). Each prepayment of Loans pursuant to clause (iii) to of this Section 2.05(b) shall be applied as set forth in clauses (vto repay such excess Revolving Loans. All prepayments under this Section 2.05(b) shall be subject to Section 3.06, but otherwise without premium or penalty, and (vii) belowshall be accompanied by interest on the principal amount prepaid through the date of prepayment.
Appears in 2 contracts
Sources: Credit Agreement (Sonic Automotive Inc), Credit Agreement (Sonic Automotive 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 have been delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), 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) 50% (such percentage as it may be reduced as described below, the “ECF Percentage 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 (i) 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 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 including the case aggregate principal amount of any Term Loans prepaid pursuant to Section 2.05(a)(iv) during such time) and (ii) all voluntary prepayments of Revolving Credit Loans during such fiscal year or other revolving Indebtedness prepaid, after year-end and prior to when such Excess Cash Flow prepayment is due to the extent accompanied the 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 (i) and (ii), to the extent such prepayments are not funded with the proceeds of Indebtedness; provided that (x) the ECF Percentage shall be 25% if the First Lien Leverage Ratio for the fiscal year covered by such financial statements was less than or equal to 4.00:1.00 and greater than 3.25:1.00 and (y) the ECF Percentage shall be 0% if the First Lien Leverage Ratio for the fiscal year covered by such financial statements was less than or equal to 3.25:1.00; provided, further, any deductions pursuant to clause (i) or (ii) above with respect to prepayments made after the end of a fiscal year shall not be deducted again when calculating the prepayment required to be made pursuant to this Section 2.05(b)(i) for the immediately succeeding fiscal year pursuant to clause (i) or (ii) above.
(ii) (A) If (1) (x) the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets (i) permitted by Section 7.05(a), (b), (c), (d) (to the extent constituting a Disposition to a Loan Party), (e), (g), (h), (i), (l), (m), (n), (o) or (p) or (ii) acquired after the Restatement Effective Date in connection with a sale-leaseback transaction permitted hereunder) or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Borrower or such Fiscal Year Restricted Subsidiary of Net Cash Proceeds, and (2) the First Lien Leverage Ratio is greater than or equal to 3.75:1.00, 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 of such Consolidated Excess Net Cash Flow prepayment is due, provided that such Proceeds an aggregate principal amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) of Term Loans equal to 100% (such amountpercentage as it may be reduced as described below, the “Excess Cash Flow AmountAsset Percentage”) of all such Net Cash Proceeds realized or received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only be applied as set forth provided if no Event of Default has occurred and is then continuing); provided that the Asset Percentage shall be 75% if the Total Leverage Ratio for the Test Period was less than or equal to 4.50:1.00; provided, further that if any Indebtedness has been issued in clauses (v) compliance with Section 7.01 and (vii) below7.03 with Liens ranking pari passu with the Liens securing the Obligations pursuant to the First Lien Intercreditor Agreement, then the Borrower may, to the extent required pursuant to the terms of the documentation governing such Indebtedness, prepay Term Loans and purchase such Indebtedness on a pro rata basis in accordance with the respective principal amounts thereof.
Appears in 2 contracts
Sources: Credit Agreement (Catalent, Inc.), Credit Agreement (Catalent Pharma Solutions, 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) 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 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 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) 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) 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 The Borrower shall prepay (or the Loans and/or Cash Collateralize, Collateralize the L/C Obligations as applicable) hereinafter provided in an aggregate principal amount of Pro Rata Obligations equal to 100.00100% of the gross cash proceeds Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries Subsidiary from any such Indebtedness less all reasonable Dispositions (other than Permitted Transfers) and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred Recovery Events within ninety (90) days thereof in connection therewith, within one (1) 5 Business Day following receipt thereof by Days after the date on which the Borrower or such Restricted Subsidiary receives such Net Cash Proceeds; provided, however, that (A) such prepayment shall not be required to the extent the Borrower or such Subsidiary reinvests all or any portion of such Net Cash Proceeds in assets useful in the Borrower’s or such Subsidiary’s business within 180 days after the receipt of such Net Cash Proceeds, (B) such prepayments (or prepayment shall be required only to the extent the aggregate Net Cash Collateralization) to be applied as Proceeds received by the Borrower and its Subsidiaries in any fiscal year of the Borrower and not reinvested in the manner set forth in clauses the foregoing clause (vA) exceed $5,000,000 and (viiC) belowin the case of any such Net Cash Proceeds received by any Subsidiary that is not a Wholly Owned Subsidiary, only the Borrower’s pro rata share (based on the ownership of Equity Interests of such Subsidiary that are owned by the Borrower and its Wholly Owned Subsidiaries) of the Net Cash Proceeds received by such Subsidiary shall be subject to this Section 2.05(b)(i).
(ii) In the event that (aEach prepayment of Loans pursuant to Section 2.05(b)(i) there shall be Consolidated Excess Cash Flow applied, first, to the principal repayment installments of the Term Loan on a pro-rata basis for all such principal repayment installments, including, without limitation, the final principal repayment installment on the Maturity Date and, second, to the Revolving Facility in the manner set forth in clause (iv) of 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 Facility.
(iii) If for any Fiscal Year (commencing with reason the Fiscal Year ending December 31, 2022) and (b) there are Total Revolving Outstandings at any Term Loans outstanding time exceed the Revolving Facility at the end of such Fiscal Yeartime, the Borrower shallshall immediately prepay Revolving Loans, no later than one-hundred-twenty-five Swingline Loans and L/C Borrowings (125together with all accrued but unpaid interest thereon) days after and/or Cash Collateralize the end of such Fiscal Year, prepay L/C Obligations in 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 Loansexcess; provided, loans under any Incremental Equivalent Debthowever, 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 required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b) unless, after the prepayment of the Revolving Loans and Swingline Loans, the Total Revolving Outstandings exceed the Revolving Facility at such time.
(iv) Prepayments of the Revolving Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swingline Loans, second, shall be applied to the outstanding Revolving 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 (without any further action by or notice to or from the Excess Borrower or any other Loan Party or any Defaulting Lender that has provided Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”Collateral) to reimburse the L/C Issuer or the Lenders, as applicable. Within the parameters of the applications set forth above, prepayments pursuant to this Section 2.05(b) shall be applied as set forth first to Base Rate Loans and then to Term SOFR Loans in clauses (vdirect order of Interest Period maturities. All prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise without premium or penalty, and (vii) belowshall be accompanied by interest on the principal amount prepaid through the date of prepayment.
Appears in 2 contracts
Sources: Credit Agreement (U S Physical Therapy Inc /Nv), Credit Agreement (U S Physical Therapy Inc /Nv)
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) 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 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 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) Upon The Borrowers shall, on the applicable Prepayment Date with respect to Net Cash Proceeds received by any Loan Party from (A) the sale, lease, transfer or other disposition including any and all involuntary dispositions, whether by condemnation, casualty loss or otherwise, of any assets of any Loan Party or any of its Subsidiaries (other than (w) any sale, lease, transfer or other disposition of assets referred to in clause (i), (ii), (iii) or (iv) of the definition of Certain Permitted Dispositions and (x) any sale, lease transfer or other disposition of assets the Net Cash Proceeds of which are reinvested in assets used in the operation of the business within 18 months of receipt of such proceeds), (B) the incurrence or issuance by the Borrower any Loan Party or any of its Restricted Subsidiaries of any Indebtedness Debt (other than Indebtedness expressly Debt permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)5.02(b), but including the Borrower shall prepay (or Net Cash Collateralize, as applicable) an aggregate principal Proceeds from the issuance of Senior Notes in excess of the amount of Pro Rata Obligations equal such Net Cash Proceeds required to 100.00% of repay the gross cash proceeds Bridge Loan Facility), and (C) any Extraordinary Receipt received by or paid to or for the Borrower account of any Loan Party or any of its Restricted Subsidiaries from and not otherwise included in clause (A) or (B) above (other than 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 Extraordinary Receipts which are reinvested in assets used in the operation of the business within ninety (90) days thereof in connection therewith, within one (1) Business Day following 18 months of 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 Yearproceeds), prepay an aggregate principal amount of the Term Loans Loan Advances comprising part of the same Term Loan (with application to be made in accordance with clause (ii) below, in an aggregate amount equal to the amount of such Net Cash Proceeds, provided, however, that with respect to any payment referred to in clause (A) above, 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 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 Proceeds from the proceeds sale 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) Collateral (such amount, the “Excess Cash Flow Amount”) to be applied other than as set forth in clauses (vi), (ii), (iii) or (iv) of the definition of Certain Permitted Dispositions) in which the lenders under the Revolving Credit Facility have a prior lien shall first be applied to repay advances, if any, under the Revolving Credit Facility.
(ii) All prepayments under this subsection (b) shall be made together with accrued interest thereof to the date of such prepayment on the principal amount prepaid, together with any amounts owing pursuant to Section 8.04 and shall be applied ratably to each remaining scheduled repayment of the Term Loan Advances. If any payment of Eurodollar Rate Advances otherwise required to be made under this Section 2.05(b) would be made on a day other than the last day of the applicable Interest Period thereon, each Borrower may direct the Administrative Agent to (viiand if so directed, the Administrative Agent shall) belowdeposit such payment in an account maintained with the Administrative Agent 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 Term Loan Advances; provided, however, that such Term Loan Advances shall continue to bear interest as set forth in Section 2.06 until the last day of the applicable Interest Period therefor.
Appears in 2 contracts
Sources: Term Loan Agreement (Building Materials Manufacturing Corp), Term Loan Agreement (BMCA Acquisition Sub 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 [Reserved.]
(ii) Other than in connection with a Cost-Cutting Transaction (solely to the incurrence or issuance by extent the Borrower proceeds thereof are incorporated into the Approved Budget effective as of the date of the applicable Cost-Cutting Transaction and solely to the extent such proceeds are used as and when contemplated thereby), if any Loan Party or any of its Restricted Subsidiaries (x) Disposes of any property in a Disposition constituting an Asset Sale which results in the realization by such Person of Net Cash Proceeds, (y) receives Net Cash Proceeds of casualty insurance or condemnation awards (or from payments in lieu thereof) (excluding for purposes of this clause (y) any Net Cash Proceeds from “Recoveries” (as defined in the AWA Environmental Indemnity Agreement and the PDC Environmental Indemnity Agreement), which must be paid to AWA under the terms of the applicable Fox River Indemnity Arrangements) or (z) incurs or issues 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 Term 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 all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred Net Cash Proceeds within ninety five (90) days thereof in connection therewith, within one (15) Business Day following Days of the receipt thereof by the Borrower or such Restricted Subsidiary, Person (such prepayments (or Cash Collateralization) to be applied as set forth in clauses clause (viii) below); provided, however, that, (A) so long as no Event of Default shall have occurred and be continuing, with respect to any prepayment of Term Loans required to be made pursuant to the preceding clause (x) above in this Section 2.05(b)(ii), subject to the consent of the Required Lenders (in their sole discretion), if such prepayment would result in the prepayment of one or more Eurodollar Rate Loans on a day other than the last day of the then current Interest Period for each such Eurodollar Rate Loan, the Borrower may defer the relevant portion of such required payment until the last day of the relevant then current Interest Period of each such applicable Eurodollar Rate Loan (provided that such deferral period shall in no case exceed sixty (60) days, provided further that, upon the occurrence of an Event of Default or the Termination Date during any such deferral period, the Borrower shall immediately prepay Term Loans in the amount of all Net Cash Proceeds received by the Borrower and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.05(b)(ii) (without giving effect to this clause (A)) but which have not previously been so applied) and (viiB) belowwith respect to any Net Cash Proceeds of (1) any property constituting an Asset Sale otherwise required to be applied under preceding clause (x) above in this Section 2.05(b)(ii), or (2) casualty insurance or condemnation awards (or from payment in lieu thereof) otherwise required to be applied under preceding clause (y) above in this Section 2.05(b)(ii), then in each case, subject to the prior written consent of the Required Lenders (in their sole discretion), such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets on terms and conditions reasonably agreed to by the Required Lenders; and provided further, however, that any Net Cash Proceeds of, as applicable, Asset Sales or casualty insurance or condemnation awards (or from payment in lieu thereof) not so reinvested shall be promptly applied if an Event of Default has occurred and is continuing to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii).
(iiiii) In Subject to Section 2.05(c), if applicable, each prepayment of Term Loans pursuant to the event that (aforegoing provisions of this Section 2.05(b) 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 prepaidapplied first, to the extent accompanied by a permanent reduction in the relevant commitment, outstanding NM Term Loans; and in the case of all such prepaymentssecond, 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) belowoutstanding Roll-up Loans.
Appears in 2 contracts
Sources: Credit Agreement (Paperweight Development Corp), Dip Facility Agreement
Mandatory. (i) Upon Within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing with the incurrence fiscal year ending on December 31, 2017) 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 (or, in the case of the fiscal year ending December 31, 2017, the third and fourth quarters of such 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)(v), in an amount equal to the 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 the date such Excess Cash Flow prepayment is due, (2) all other voluntary prepayments of Term Loans made pursuant to Section 2.05(a) during such fiscal year or after year-end and prior to the date such Excess Cash Flow prepayment is due, and (3) all voluntary prepayments of Revolving Credit 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 are permanently reduced by the amount of such payments, in the case of each of the immediately preceding clauses (1), (2) and (3), except to the extent such prepayments are funded with the proceeds of long term Indebtedness; provided that, to the extent any voluntary prepayments of Loans made during the current fiscal year are applied to reduce the Excess Cash Flow payment for the prior fiscal year pursuant to foregoing clauses (1), (2) and (3), then such prepayments shall not be deducted with respect to the Excess Cash Flow prepayment for the current fiscal year; provided, further that no prepayment under this Section 2.05(b) shall be required to the extent that the amount thereof would not exceed $5,000,000.
(ii) If (1) the Borrower or any Restricted Subsidiary Disposes of any property or assets (excluding any Disposition of any property or assets permitted by ▇▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) (solely to the extent the aggregate Net Proceeds of such Dispositions do not exceed $5,000,000 in any fiscal year), (l), (m) (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 (t)), or (2) any Casualty Event occurs, which, in the case of either clauses (1) or (2) of this Section 2.05(b)(ii), results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Proceeds, subject to Section 2.05(b)(v), the Borrower shall cause to be prepaid on or prior to the date which is 10 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 (x) 100% of all such Net Proceeds if the Consolidated Total Net Leverage Ratio immediately prior to such receipt (determined on a Pro Forma Basis in accordance with Section 1.08) is greater than 4.75:1.00, (y) 50% if the Consolidated Total Net Leverage Ratio immediately prior to such receipt (determined on a Pro Forma Basis in accordance with Section 1.08) is less than or equal to 4.75:1.00 and greater than 4.00:1.00 and (z) 0% if the Consolidated Total Net Leverage Ratio immediately prior to such receipt (determined on a Pro Forma Basis in accordance with Section 1.08) is less than or equal to 4.00:1.00; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Permitted First Priority Refinancing Debt or first lien Incremental Equivalent Debt, and the 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 or first lien Incremental Equivalent 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 expressly 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 may be retained by the Borrower.
(iii) If the Borrower or any Restricted Subsidiary incur or issue 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 Section 2.05(b)(iii)(B) which constitutes a Repricing Event that is consummated in respect of all or any portion of the Initial Term Loans on or prior to the six month anniversary of the Second Amendment Effective 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(c).
(iiiv) In If for any reason the event aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C ObligationsExposures of any Facility at any time exceeds the aggregate Revolving Credit Commitments then in effect for such Facility (including as a result of the termination of any Revolving Credit Commitments on the applicable Maturity Date thereof), 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 with respect to such Facility in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations of such Facility pursuant to this Section 2.05(b)(iv) unless, after the prepayment in full of the Revolving Credit Loans for such Facility and Swing Line Loans, such aggregate Revolving Credit Exposures exceed the aggregate Revolving Credit Commitments for such Facility then in effect. After the date of any Extension Amendment or Refinancing Amendment, if for any reason, at any time during the ten (a10) Business Day period immediately preceding the applicable Maturity Date for any Non-Refinanced/Extended Revolving Commitments, (x) the Allocable Revolving Share of the Revolving Credit Exposure attributable to L/C Obligations of the Non-Refinancing/Extending Revolving Lenders with such Non-Refinanced/Extended Revolving Credit Commitments exceeds (y) the amount of the Revolving Credit Commitments (exclusive of such Non-Refinanced/Extended Revolving Credit Commitments) minus the other Revolving Credit Lenders’ Allocable Revolving Share of the total Revolving Credit Exposure at such time, then 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 necessary to eliminate such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this sentence 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.excess has not been eliminated. Further, if for any reason, at any time during the ten (10) Business Day period immediately preceding the applicable Maturity Date for any Revolving Credit Commitments where there exist other Revolving Credit Commitments with a longer Maturity Date or Maturity Dates, and if at such time there are outstanding Letters of Credit under such respective Class or Classes, then the Borrower shall prepay (in accordance with Section 2.05) outstanding Revolving Credit Loans and Swing Line Loans as is needed so that, after giving effect thereto, the Revolving Credit Exposure of the Revolving Credit Lenders with such later Maturity Dates will not, after giving effect to the reallocations contemplated by Sections 2.03(m) and 2.04(g), exceed the amount of their respective Revolving Credit Commitments as in effect on (and after giving effect to) the Maturity Date of such sooner maturing Revolving Credit Commitments.
(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 Consolidated Excess Cash Flow for applied ratably to each Class of Term Loans then outstanding (provided that any Fiscal Year (commencing prepayment of Term Loans with the Fiscal Year ending December 31Net 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, 2022each prepayment pursuant to clauses (i), (ii) and (biii) there are any of this Section 2.05(b) shall be applied as directed by the Borrower (and absent such direction, 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; provided, that to the extent the amount required to be applied to prepayment of Term Loans outstanding at pursuant to this Section 2.05(b) exceeds 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 then outstanding, such excess shall be applied, in the manner provided in Section 2.06(b), to permanently reduce the unused Revolving Credit Commitments.
(Avi) The Borrower shall notify the ECF Percentage Administrative Agent in writing of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments any mandatory prepayment of Term LoansLoans required to be made by the Borrower pursuant to clauses (i), loans under any Incremental Equivalent Debtand (ii), 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 (iii) of such Fiscal Year and this Section 2.05(b) at least two 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 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.
(vii) Notwithstanding anything in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, this Section 2.05(b) to the extent accompanied contrary, any 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 Administrative Agent by telephone (and not from the proceeds of Indebtedness confirmed by hand delivery, facsimile transmission or the sale or issuance of Equity Interests or equity contributionse-mail) and, in the case of all such prepayments made after the end of such Fiscal Year and at least one Business Day prior to the date such Consolidated Excess Cash Flow required prepayment is duedate, provided to decline all or any portion of any mandatory prepayment of its Term Loans pursuant to this Section 2.05(b), in which case the aggregate amount of the prepayment that such amount would have been applied to prepay Term Loans but was so deducted declined shall not be deducted from retained by 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) belowBorrower.
Appears in 1 contract
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.
(iv) [Reserved.]
(v) If for any reason the sum of the Total Revolving Credit Outstandings in respect of any Revolving Tranche or the sum of outstanding Specified Refinancing Revolving Loans at any time exceeds such aggregate Revolving Credit Commitments or the commitments to make Specified Refinancing Revolving Loans (including after giving effect to any reduction in the Revolving Credit Commitments pursuant to Section 2.06), the Borrower shall immediately prepay the Loans thereunder and/or 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 thereunder the sum of the Total Revolving Credit Outstandings in respect of such Revolving Tranche or the outstanding Specified Refinancing Revolving Loans, as the case may be, exceed the aggregate Revolving Credit Commitments under such Revolving Tranche or the commitments to make Specified Refinancing Revolving Loans, as the case may be, then in effect.
(such prepayments 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 (other than a prepayment of (x) Term Loans or Cash CollateralizationRevolving 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 as set forth 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, and in the case of Eurocurrency Rate Loans, in direct order of Interest Period maturities; provided, further, that for the avoidance of doubt, 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 and the Delayed Draw Term Loans based on the then outstanding principal balances thereof.
(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 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 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 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 or restricted by applicable local law, rule or regulation (including, without limitation, financial assistance and corporate benefit restrictions and fiduciary and statutory duties of any direct or officers of such Subsidiaries) from being repatriated to the Borrower or so 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 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 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 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 or Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow 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 1 contract
Sources: Credit Agreement (KLDiscovery Inc.)
Mandatory. The Borrower shall make a prepayment of the Loans until Paid in Full upon the occurrence of any of the following at the following times and in the following amounts:
(i) Upon If, at any time, the incurrence or issuance by aggregate amount of the Borrower or Lenders’ Revolving Credit Exposure (excluding for this purpose any outstanding Letters 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))that have been Cash Collateralized) exceeds the Aggregate Revolving Commitments, the Borrower shall prepay promptly (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 and in 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 therewithevent, within one (1) Business Day following receipt thereof by after the Borrower or date when such Restricted Subsidiary, excess first arose) (x) repay the Revolving Loans and/or Swingline Loans in an amount necessary to eliminate such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) excess and (viiy) below)if, after giving effect to the repayment in full of all outstanding Revolving Loans such excess has not been eliminated, Cash Collateralize the outstanding Letters of Credit.
(ii) In Mandatory prepayments of the event that (a) there Loans shall be Consolidated Excess applied, first, to prepayment of the Swingline Loans; second, if all Swingline Loans have been paid in full, to repayment of outstanding LC Disbursements; third, if all Swingline Loans and outstanding LC Disbursements have been paid in full, to prepayment of the Revolving Loans; and fourth, if all Swingline Loans, outstanding LC Disbursements and Revolving Loans have been paid in full, to Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31Collateralize all LC Obligations, 2022) and (b) there are any Term Loans outstanding at the end if any, in an amount equal to 105% of such Fiscal YearLC Obligations, the Borrower shallon terms, 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 pursuant 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 commitmentdocumentation, and in the case of all such prepayments, form and substance reasonably satisfactory to the extent that such prepayments are financed with internally generated cash of the Borrower (Administrative Agent 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) beloweach applicable Issuing Bank.
Appears in 1 contract
Sources: Credit Agreement (Astronics Corp)
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 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 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 lender replacement provisions (including pursuant to Section 3.07)) (except prepayments of Loans under the ABL Credit Agreement or any other revolving Indebtedness that is pari passu in right of payment and security with the ABL Debt that are not accompanied by a corresponding permanent commitment reduction of the ABL Debt), 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) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(vi) or (vii),
(3) 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 (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 by the Borrower in good faith) 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 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,
(5) the aggregate amount of cash consideration paid by the Borrower or any Restricted Subsidiary (on a consolidated basis) in connection with any Permitted Investments or other Investments permitted hereunder (including, without limitation, any acquisitions and acquisitions of intellectual property but excluding Permitted Investments pursuant to clauses (1) and (2) of the definition thereof) 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 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 Permitted Investments or other Investments permitted hereunder (including, without limitation, any acquisitions and acquisitions of intellectual property but excluding Permitted Investments pursuant to clauses (1) and (2) of the definition thereof) or capital expenditures to be consummated or made during the 180-day period 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 180-day period is less than the Contract Consideration, the amount of such shortfall shall be required to be used to prepay Term Loans in an amount equal to such shortfall at the end of such period of four consecutive fiscal quarters in which the 180-day period elapsed; 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 2.50:1.00 or 2.00:1.00, respectively (the amount of Excess Cash Flow required to be used to prepay Term Loans pursuant to 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 $50,000,000 and 2.50% of Four Quarter Consolidated EBITDA, and in such case, the ECF Prepayment Amount shall be the amount in excess thereof.
(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 $50,000,000 (“Relevant Transaction”), then, except to the extent Borrower elects in a written notice to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.05, 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% (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 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 by the Borrower in good faith) 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 by the Borrower in good faith); provided further that only the amount of Net Cash Proceeds in excess of $50,000,000 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).
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Refinancing Notes, any Specified Refinancing Debt constituting new term loan facilities 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.
(iv) Subject to Section 2.18, 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 less favorable prepayment treatment of such prepayments (or Cash Collateralization) Term Loan Tranche, so long as each other Term Loan Tranche receives its Pro Rata Share of any amount 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 31more favorably, 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, except to the extent accompanied otherwise agreed by the Majority Lenders of each Term Loan Tranche receiving less than such Pro Rata Share) (other than a permanent reduction in the relevant commitment, and in the case prepayment of all such prepayments, to the extent that such prepayments are financed (x) Term Loans 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) andincurred pursuant to Section 2.19, in the case of all such prepayments made after the end of such Fiscal Year and prior which shall be applied to the date such Consolidated Excess Cash Flow prepayment is dueTerm Loan Tranche being refinanced pursuant thereto or (y) Term Loans with the proceeds of any Refinancing Notes issued to the extent permitted under Section 7.03(b)(1), provided that such amount so deducted which shall not be deducted from applied to the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) Term Loan Tranche being refinanced pursuant thereto). 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) shall be applied to interest on each such Term Loan Tranche on a pro rata basis that is accrued and (viipayable 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) belowshall be applied on a pro rata basis to the then outstanding Base Rate Loans and Term Benchmark 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 Term Benchmark 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.
Appears in 1 contract
Mandatory. (i) Upon The Term A Facility shall be automatically and permanently reduced upon each repayment or prepayment of the incurrence or issuance outstanding Term A Loans, by an amount equal to the Borrower or any of its Restricted Subsidiaries of any Indebtedness amount by which (other than Indebtedness expressly permitted A) the Term A Facility immediately prior to be incurred or issued pursuant to Section 7.03 such reduction exceeds (except Credit Agreement Refinancing Indebtedness)), B) 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 all Term A Loans outstanding at 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)time.
(ii) In the event that (a) there The Term B Facility shall be Consolidated Excess Cash Flow for any Fiscal Year automatically and permanently reduced upon each repayment or prepayment of the outstanding Term B Loans, by an amount equal to the amount by which (commencing with A) the Fiscal Year ending December 31, 2022Term B Facility immediately prior to such reduction exceeds (B) 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 all Term B Loans outstanding at such time.
(iii) The Revolving Credit Facility shall be automatically and permanently reduced on each date on which the Term Loans equal to (A) the ECF Percentage prepayment 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 outstanding thereunder is required to be made pursuant to Section 2.05(a) (other than a prepayment solely in respect of the Revolving Credit Facility) or Section 2.05(b)(i), (ii), (iii), (iv) or (v) by an amount equal to the applicable Revolving Reduction Amount; provided, that in lieu of permanently reducing the Revolving Credit Facility in connection with a required prepayment under Section 2.05(a) or Section 2.05(b), the Borrower may Cash Collateralize the Revolving Credit Facility in an amount equal to the applicable Revolving Reduction Amount.
(iv) The Reallocated Facility shall be automatically and permanently reduced on each date on which the prepayment of Reallocated Loans outstanding thereunder is required to be made pursuant to Section 2.05(a) (other Indebtednessthan a prepayment solely in respect of the Reallocated Facility) or Section 2.05(b)(i), (ii), (iii), (iv) or (v) by an amount equal to the applicable Reallocation Reduction Amount; provided, that in each caselieu of permanently reducing the Reallocated Facility in connection with a required prepayment under Section 2.05(a) or Section 2.05(b), secured on a pari passu basis with the Liens securing Borrower may Cash Collateralize the Obligations hereunderReallocated Credit Facility in an amount equal to the applicable Reallocation Reduction Amount.
(v) If after giving effect to any reduction or termination of unused Commitments under this Section 2.06, in each casethe Revolving Letter of Credit Sublimit exceeds the amount of the aggregate Revolving Credit Commitments or the Reallocated Letter of Credit Sublimit exceeds the amount of the aggregate Reallocated Facility Commitments, made during such Fiscal Year or after Sublimit shall be automatically reduced by the end amount of such Fiscal Year and prior to excess.
(vi) Each of the date such Consolidated Excess Cash Flow prepayment is due (in Commitments shall be terminated upon the case making of any such Revolving Credit Loans Cash Distribution by the Parent Guarantor or other revolving Indebtedness prepaid, any of its Subsidiaries 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 any holder of Equity Interests or equity contributions) and, in the case Parent Guarantor (other than any Cash Distribution expressly permitted by the terms 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) belowthis Agreement).
Appears in 1 contract
Sources: Credit Agreement (Dynegy Inc /Il/)
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 fiscal year ended December 31, 2017) 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 (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) (or any 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 any comparable section) of its Restricted Subsidiaries the First Lien Credit Agreement, during such fiscal year or, without duplication across periods, 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, Parent or any Restricted Subsidiary 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, Parent or any 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, Parent or any Restricted Subsidiary of 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 or other Loan Party is required to offer to repurchase Permitted Second Priority Refinancing Debt, Incremental Equivalent Debt (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 expressly (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 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, Incremental Equivalent Debt (or the Permitted Refinancing of any such Indebtedness) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower or other Loan Party 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, Parent 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 date which is five Business Days after the receipt by the Borrower, Parent or such Restricted Subsidiary 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 two year anniversary of the Closing Date, the Borrower shall pay to each Term Lender the fee required by Section 2.09(d).
(iv) [Reserved].
(v) Notwithstanding any other provision 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, including as a result of minority ownership (so long as such restrictions were not implemented for the purpose of avoiding such mandatory prepayment requirements), an amount equal to the portion of such Foreign Subsidiary Excess Cash Flow that would be so affected were the Borrower or Parent or a Restricted Subsidiary to attempt to repatriate such cash proceeds received 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, 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, Parent, the 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 or Parent to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower or Parent has determined in good faith that repatriation of any Foreign Subsidiary Excess Cash Flow would have adverse tax cost consequences that are not de minimis (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 (A) to repay local foreign indebtedness, if any, or to be retained by the relevant Foreign Subsidiary, and (B) for working capital purposes of Parent, the Borrower and the Restricted Subsidiaries, in each case, 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 Parent 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, Parent and the 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 Indebtedness less Excess Cash Flow Period.
(vi) Notwithstanding any other provision of this Section 2.05, (i) to the extent that the repatriation to the United States of any or all reasonable and customary out-of-pocket legalof 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, underwriting and other feesincluding as a result of minority ownership (so long as such restrictions were not implemented for the purpose of avoiding such mandatory prepayment requirements), costs and expenses incurred or reasonably anticipated an amount equal to the Net Proceeds that would be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by so affected were the Borrower or Parent or a Restricted Subsidiary to attempt to repatriate such Restricted Subsidiary, (such prepayments (or Cash Collateralization) 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 set forth the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States, 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 Parent, the Borrower, the 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 result of a repatriation, whether or not a repatriation actually occurs) by the Borrower, Parent or the Restricted Subsidiaries to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower or Parent 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 adverse tax cost consequences that are not de minimis (including the imposition of withholding Taxes) 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 in the case of each of clauses (vi) and (viiii), such nonpayment shall not constitute an Event of Default (and such amounts shall be available (A) belowto repay local foreign indebtedness, if any, or to be retained by the relevant Foreign Subsidiary, and (B) for working capital purposes of the Borrower, Parent and the Restricted Subsidiaries, in each case, subject to the 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 amounts are used in or excluded from the determination of the amount of any mandatory prepayments hereunder).
(iivii) In the event that Except as otherwise provided in any Refinancing Amendment, Extension Amendment or any Incremental Amendment or as otherwise provided herein, (aA) there each prepayment of Term Loans pursuant to this Section 2.05(b) shall be Consolidated Excess Cash Flow for applied ratably to each Class of Term Loans then outstanding (provided that any Fiscal Year (commencing prepayment of Term Loans with the Fiscal Year ending December 31, 2022Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt) and (bB) there are each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(viii) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans outstanding required to be made by the Borrower pursuant to clauses (i), (ii) and (iii) of this Section 2.05(b) at least three Business Days prior to the end date of such Fiscal Yearprepayment. 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 Term Loans required to be made pursuant to clauses (i), (ii) and (iii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower shall, no later than one-hundred-twenty-five (125) days 5:00 p.m. New York City time one Business Day after the end date of such Fiscal YearLender’s receipt of notice from the Administrative Agent regarding such prepayment; provided, prepay an aggregate however, in no event may the proceeds of any Credit Agreement Refinancing Indebtedness be rejected. 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 Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans equal to (A) the ECF Percentage be rejected, any such failure will be deemed an acceptance 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 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: Second Lien Credit Agreement (Global Eagle Entertainment 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 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 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, (7) the amount of Investments and acquisitions made (or committed to be applied 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 set forth committed in clauses (va subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) and paid (viior committed to be paid) below.in cash pursuant to Section 7.02 (other than Section 7.02(a), (c) or
Appears in 1 contract
Sources: Credit Agreement (Alight Inc. / DE)
Mandatory. (i) Upon the incurrence or issuance by the Borrower or 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 Parent 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 in an amount 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 the Loans and “Loans, loans under any Incremental Equivalent Debt, Revolving ” as defined in the First Lien Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunderAgreement, 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 (excluding prepayments at a discount to par and open market purchases) (except prepayments of Loans (as defined in the case of First Lien Credit Agreement) under any such Revolving Tranche (as defined in the First Lien Credit Loans or other revolving Indebtedness prepaid, to the extent Agreement) that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches (as defined in the relevant commitmentFirst Lien Credit Agreement)), 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 and (2) 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 sale 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 issuance of Equity Interests less than 4.00:1.00 or equity contributions) and3.50:1.00, in the case of all such prepayments made after the end of such Fiscal Year and prior respectively; provided, further, that no prepayment shall be required with respect to any Excess Cash Flow Period to the date extent Excess Cash Flow for such period is equal to or less than $1,000,000 (and for such period such prepayment shall be limited to the amount in excess of $1,000,000); 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 is duewould result in the percentage in respect of the applicable Excess Cash Flow Period being reduced to 25% or 0%, provided that then such amount so deducted shall not be deducted from reduced percentage applicable to the Excess Cash Flow Amount in prepayment required to be made shall apply; provided, further, that no such prepayment shall be required for any subsequent period) (such amount, the “Excess Cash Flow Amount”Period (x) if any First Lien Facilities remain outstanding at the time the financial statements and related Compliance Certificate for such Excess Cash Flow Period are required to be applied as set forth in clauses delivered pursuant to this Section 2.05(b)(i) or (vy) and (viiunless with the proceeds of mandatory prepayments pursuant to Section 2.05(b)(i) belowof the First Lien Credit Agreement declined by the Lenders thereunder.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Mandatory. Until such time as the Outstanding Amount has been repaid in full, the Outstanding Amount shall be permanently prepaid in the amounts set forth below upon the occurrence of any of the following events:
(i) Upon In the incurrence or issuance event of any Debt Issuance by the Borrower or any of its Restricted Subsidiaries on or after the Closing Date, then concurrently with receipt of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))Net Cash Proceeds of such Debt Issuance, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100.00100% of such Net Cash Proceeds; provided that to the gross cash extent that (a) to the extent any Net Cash Proceeds received in connection with a Debt Issuance permitted by Section 7.03(i) are used to make a voluntarily redemption, repurchase or prepayment of the 2014 Notes or the 2017 Notes or (b) to the extent any Net Cash Proceeds received in connection with a Debt Issuance permitted by Section 7.03(j) are used to make a voluntarily redemption, repurchase or prepayment of the Convertible Notes, in each case, such Net Cash Proceeds shall not be required to prepay the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, pursuant to this clause (i).
(ii) If Net Cash Proceeds of Extraordinary Receipts received on or after the Closing Date by the Borrower or any of its Restricted Subsidiaries exceed during any calendar year an amount equal to $25,000,000 (the portion of such Net Cash Proceeds that exceeds $25,000,000 is herein referred to as “Excess Extraordinary Receipts”) the Borrower shall prepay an aggregate principal amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Excess Extraordinary Receipts immediately upon receipt thereof by the Borrower or such Restricted Subsidiary; provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), for so long as no Event of Default shall have occurred and be continuing, the Borrower or a Restricted Subsidiary may reinvest such Extraordinary Receipts in assets used in the businesses of the Borrower or its Restricted Subsidiaries, and in such case any such Extraordinary Receipts that have not been reinvested within one year from the receipt thereof by the Borrower or such Restricted Subsidiary shall be immediately applied to the prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans.
(iii) If Net Cash Proceeds received on or after the Closing Date by the Borrower or any of its Restricted Subsidiaries from one or more Dispositions (other than Dispositions to the Borrower or to a Restricted Subsidiary permitted by Section 7.05(a)(v) or 7.05(a)(vi)) or Dispositions permitted by Section 7.05(a)(iv) of property other than Revolver Priority Collateral exceed during any calendar year, an aggregate amount equal to $30,000,000 (the portion of such Indebtedness less all reasonable Net Cash Proceeds that exceeds $30,000,000 is herein referred to as “Excess Disposition Net Cash Proceeds”) the Borrower shall prepay an aggregate amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Excess Disposition Net Cash Proceeds immediately upon receipt thereof by the Borrower or a Restricted Subsidiary, provided, however, (x) for so long as no Event of Default shall have occurred and customary out-of-pocket legalbe continuing, underwriting the Borrower or a Subsidiary may reinvest such Excess Disposition Net Cash Proceeds in assets used in the business of the Borrower or its Subsidiaries, and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, such case any Excess Disposition Net Cash Proceeds that have not been reinvested within one (1) Business Day following year from the receipt thereof by the Borrower or such Restricted SubsidiarySubsidiary shall, upon the expiration of such one-year period, be immediately applied, as otherwise provided in this Section 2.03(b)(iii), to the prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, or if clause (such prepayments y) is applicable thereto, as provided in clause (or Cash Collateralization) to be applied as set forth in clauses (v) y); and (viiy) below)Excess Disposition Net Cash Proceeds received from one or more Dispositions permitted by Section 7.05(a)(ix) or 7.05(a)(x) may be either (1) reinvested as provided in clause (x) above or (2)(A) used by the Borrower to make an optional prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, at par in an amount equal to the Lenders’ Applicable Percentage (calculated without regard for any Outstanding Amount of any Class of Loans not entitled to share in such application) of such Excess Disposition Net Cash Proceeds or (B) used by the Borrower to make a voluntary redemption of the 2014 Notes or, if the 2014 Notes are no longer outstanding, to make an offer to the Lenders to prepay the Term Facility pursuant to Section 2.03(c) and, to the extent such offer is declined, the Borrower may retain such declined amounts.
(iiiv) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year 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 Year2011), the Borrower shall, no later than one-hundred-twenty-five (125) ninety days after the end of such Fiscal Yearfiscal year, prepay an aggregate principal amount of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, in an aggregate amount equal to (A) the ECF Percentage 50% of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all 100% of 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 that fiscal year pursuant to Section 2.03(a); provided, however, that (A) in the event that the Consolidated Leverage Ratio is less than 3.00 to 1.00 but greater than or after equal to 2.00:1.00 as evidenced by a Compliance Certificate provided pursuant to Section 6.02(b) as of the end of such Fiscal Year and prior fiscal year, the Borrower shall prepay the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, in an aggregate amount equal to the date 25% of such Consolidated Excess Cash Flow prepayment is due less 100% of voluntary prepayments made during that fiscal year pursuant to Section 2.03(a) and (B) in the case event that the Consolidated Leverage Ratio is less than 2.00 to 1.00, as evidenced by a Compliance Certificate provided pursuant to Section 6.02(b) as of any the end of such Revolving Credit Loans fiscal year or other revolving Indebtedness prepaidupon the written consent of the Required Lenders, no such prepayment shall be required. Notwithstanding anything to the extent accompanied by a permanent reduction in contrary contained within this subsection (iv), the relevant commitment, and in the case of all such prepayments, Borrower shall not be required to make any payment under this subsection (iv) to the extent that such prepayments are financed with internally generated cash of prepayment would cause Liquidity to fall below 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) belowMinimum Liquidity Threshold.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Western Refining, Inc.)
Mandatory. (i) If the Borrower or any of its Restricted Subsidiaries consummates any Asset Sale which in the aggregate results in the realization by the Borrower or such Restricted Subsidiary of Net Asset Sale Proceeds (determined as of the date of such Asset Sale, whether or not such Net Asset Sale Proceeds are then received by the Borrower or such Restricted Subsidiary), the Borrower shall apply all Net Asset Sale Proceeds received pursuant to Section 7.5 and all other Net Asset Sale Proceeds other than Excluded Proceeds, in each case, to the extent not previously applied in such Fiscal Year to make mandatory prepayments of Term Loans under this clause (b)(i) (it being understood that Net Asset Sale Proceeds subject to this clause (b)(i) applied in such Fiscal Year to make prepayments of Term Loans prior to receipt of such Net Asset Sale Proceeds other than Excluded Proceeds shall be deemed to have been made as a mandatory prepayment under this clause (b)(i)), within three Business Days after the date of receipt thereof by the Borrower or such Restricted Subsidiary subject to the provisions of Section 2.4(b)(ix)), as follows:
(A) to the extent such Net Asset Sale Proceeds are not OPH Asset Sale Proceeds, (X) if none of such Net Asset Sale Proceeds is required by the terms of any Parity Secured Debt to be offered to any holder of any Parity Secured Debt or otherwise used to repurchase or prepay any Parity Secured Debt, to prepay Loans (determined as provided in Section 2.4(b)(vii) and (viii) below) in an amount equal to 100% of such Net Asset Sale Proceeds received and (Y) if any of such Net Asset Sale Proceeds is required by the terms of any Parity Secured Debt to be offered to any holder of any Parity Secured Debt or otherwise used to repurchase or prepay any Parity Secured Debt, to prepay Loans (determined as provided in Section 2.4(b)(vii) and (viii) below) in an amount equal to 100% of such Net Asset Sale Proceeds received multiplied by the Pro Rata Percentage; and
(B) to the extent such Net Asset Sale Proceeds are OPH Asset Sale Proceeds, (X) if none of such Net Asset Sale Proceeds is required by the terms of any Parity Secured Debt or the OPH Note Indenture to be offered to any holder of any Parity Secured Debt or any holder of an OPH Note or otherwise used to repurchase or prepay any Parity Secured Debt or OPH Notes, to prepay Loans (determined as provided in Section 2.4(b)(vii) and (viii) below) in an amount equal to 100% of such Net Asset Sale Proceeds received, to the extent the OPH Note Indenture does not prohibit the distribution of such Net Asset Sale Proceeds to the Borrower, (Y) to the extent such OPH Asset Sale Proceeds in the aggregate are equal to or less than the outstanding principal amount of the OPMW Term Notes and the OPNY Term Note, to prepay (without any offer to repurchase or prepay any OPH Notes) on first, the OPMW New Term Note and the OPNY Term Note on a pro rata basis and second the OPMW Refinancing Note, and, in turn, to prepay Loans (determined as provided in Section 2.4(b)(vii) and (viii) below) (without any offer to repurchase or prepay any other Parity Secured Debt), and (Z) to the extent such OPH Asset Sale Proceeds (I) in the aggregate exceed the outstanding principal amount of the OPMW Term Notes and the OPNY Term Note, (II) are not otherwise required, in accordance with the OPH Note Indenture, to be offered to prepay any OPH Notes, and (III) are required by the terms of any Parity Secured Debt to be offered to any holder of Parity Secured Debt or otherwise used to repurchase or prepay any Parity Secured Debt, to pay a dividend in the amount of such proceeds to the Borrower and, in turn, to prepay Loans (determined as provided in Section 2.4(b)(vii) and (viii) below) in an amount equal to 100% of such Net Asset Sale Proceeds received multiplied by the Pro Rata Percentage, but only (so long as and to the extent such Net Asset Sale Proceeds are not accepted by any such holder of Parity Secured Debt) to the extent the OPH Note Indenture does not prohibit the distribution of such Net Asset Sale Proceeds to the Borrower. In addition, in the event any such Net Asset Sale Proceeds described in the foregoing sentence (x) are required by the terms of any Parity Secured Debt to be and are offered to any holder of Parity Secured Debt but are not accepted by such holder, or (y) are required by the terms of the OPH Note Agreement to be and are offered to any holder of an OPH Note but are accepted neither by such holder nor subsequently by any holder of any Parity Secured Debt to whom they are required by the terms of any Parity Secured Debt Agreement to be and are offered, and are permitted in accordance with the OPH Note Indenture to be distributed to the Borrower (such Net Asset Sale Proceeds being referred to herein as "Available Proceeds"), then promptly, but in any event no later than three (3) Business Days after the last day for, in each case, such holder of any Parity Secured Debt to accept the repurchase or prepayment offer, the Borrower shall prepay Loans (determined as provided in Section 2.4(b)(vii) and (viii) below) in an amount equal to 100% of such Available Proceeds.
(ii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness secured Senior Debt (other than Excepted Debt) and any Permitted Refinancing Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))of any of the foregoing, 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 Financing Proceeds received therefrom within three Business Days after the gross cash proceeds received date of receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.4(b)(ix).
(iii) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries from of any unsecured Senior Debt (other than Excepted Debt), the Borrower shall prepay an aggregate principal amount of Loans equal to (x) if the Consolidated Leverage Ratio determined on a pro forma basis after giving effect to such Indebtedness incurrence or issuance as of the last day of the Fiscal Quarter most recently ended equals or exceeds to 4.0:1, 75% of all Net Financing Proceeds received therefrom and (y) if the Consolidated Leverage Ratio so determined is less than 4.0:1, 50% 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 therewithNet Financing Proceeds received therefrom, within one (1) three Business Day following Days after the date of receipt thereof by the Borrower or such Restricted SubsidiarySubsidiary subject to the provisions of Section 2.4(b)(ix); provided, that so long as no Event of Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest any Net Financing Proceeds in accordance with this proviso, it shall deliver written notice of such intention to the Administrative Agent on or prior to the third Business Day immediately following the date on which Borrower receives such Net Financing Proceeds, (B) if the Borrower shall have delivered such notice, it may reinvest all or any portion of such Net Financing Proceeds in an aggregate amount, together with the aggregate amount of Net Financing Proceeds reinvested pursuant to Section 2.4(b)(iv), not to exceed $500,000,000 in ERCOT Assets so long as, pending such reinvestment, the Net Financing Proceeds are applied to repay Revolving Credit Loans or maintained as Collateral for the Credit Agreement Obligations, and (C) on the date the Borrower consummates such purchase of ERCOT Assets, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Financing Proceeds have been reinvested in accordance with the proviso of this clause (b)(iii) and, as a result, no mandatory prepayments are required under this clause (or Cash Collateralization) b)(iii); provided, further, that any Net Financing Proceeds not so reinvested shall be immediately applied to be applied the prepayment of the Loans as set forth in clauses (v) and (vii) below)this Section.
(iiiv) In Upon the event that incurrence or issuance by the Borrower of any Junior Securities (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing other than Excepted Debt and other than in connection with the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at exercise of employee options or the end of such Fiscal YearRRI Warrants), 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 50% of all Net Financing Proceeds received therefrom, within three Business Days after the date of receipt thereof by the Borrower subject to the provisions of Section 2.4(b)(ix); provided, that so long as no Event of Default shall have occurred and be continuing, (A) if the ECF Percentage Borrower intends to reinvest any Net Financing Proceeds in accordance with this proviso, it shall deliver written notice of such Consolidated Excess Cash Flow for intention to the Administrative Agent on or prior to the Business Day immediately following the date on which Borrower receives such Fiscal Year less Net Financing Proceeds, (B) if the Borrower shall have delivered such notice, it may reinvest all voluntary or any portion of such Net Financing Proceeds in an aggregate amount, together with the aggregate amount of Net Financing Proceeds reinvested pursuant to Section 2.4(b)(iii), not to exceed $500,000,000 in ERCOT Assets so long as, pending such reinvestment, the Net Financing Proceeds are applied to repay Revolving Credit Loans or maintained as Collateral for the Credit Agreement Obligations, and (C) on the date the Borrower consummates such purchase of ERCOT Assets, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Financing Proceeds have been reinvested in accordance with the proviso of this clause (b)(iv) and, as a result, no mandatory prepayments are required under this clause (b)(iv); provided, further, that any Net Financing Proceeds not so reinvested shall be immediately applied to the prepayment of Term Loansthe Loans as set forth in this Section.
(v) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower, loans any of the Loan Parties or OPH or any of its Subsidiaries in respect of its property or assets, and not otherwise included in clause (i), (ii), (iii) or (iv) of this clause (b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Casualty Proceeds received therefrom within three Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.4(b)(ix); provided, that with respect to proceeds of insurance and Condemnation awards (or payments in lieu thereof), (A) if the Borrower intends to reinvest the Net Casualty Proceeds thereof in accordance with this proviso, it shall deliver written notice of such intention to the Administrative Agent on or prior to the Business Day immediately following the date on which Borrower receives such Net Casualty Proceeds, (B) if the Borrower shall have delivered such notice, the Net Casualty Proceeds thereof may be reinvested, so long as such reinvestment is to restore, repair or replace the assets or property or purchase other assets with substantially the same utility and in the same line of business in respect of which such Net Casualty Proceeds were received, and so long as such reinvestment is consummated or irrevocably committed to be consummated within 365 days after the receipt of such Net Casualty Proceeds so long as, pending such reinvestment, the Net Casualty Proceeds are applied to repay Revolving Credit Loans or maintained as Collateral for the Credit Agreement Obligations, and (C) on the date the Borrower consummates or commits to consummate such restoration, repair or replacement or purchase, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Casualty Proceeds have been reinvested in accordance with the first proviso of this clause (b)(v) and, as a result, no mandatory prepayments are required under this clause (b)(v); provided, further, that any Net Casualty Proceeds not so reinvested (or such lesser percentage which represents the remaining portion of such proceeds not expended or committed pursuant to the foregoing and less any amounts required to pay for necessary remediation expenses with respect to a condition affecting the applicable property, to pay reasonable expenses incurred in connection with the closure of the applicable property and to pay any costs reasonably incurred in connection with such casualty event) shall be immediately applied to the prepayment of the Loans in accordance with the foregoing or, to the extent the Collateral Trustee is loss payee under any Incremental Equivalent Debtinsurance policy (if applicable), the Borrower shall irrevocably direct the Collateral Trustee to transfer to the Administrative Agent to be applied (in each case, promptly, but in no event later than three (3) Business Days following receipt of such proceeds) as a prepayment of Loans in accordance with the foregoing; provided, that if an Event of Default shall have occurred and be continuing, all Net Casualty Proceeds which would otherwise be payable to the Borrower pursuant to this clause (b)(v) shall be paid to the Collateral Trustee and applied pursuant to the Collateral Trust Agreement; provided, however, that with respect to tangible property subject to any Permitted Encumbrance, no such prepayment shall be required to the extent that this clause (b)(v) would require an application of Net Casualty Proceeds that would violate or breach any of the provisions of the instruments or documents under which such Permitted Encumbrance arises or which governs the application of proceeds.
(vi) If, as a result of the Borrower reducing the Aggregate Revolving Credit Commitments, the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, 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 case, 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 clause (b)(vi) 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 the Total Revolving Credit Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(vii) Each prepayment of Loans pursuant to clauses (i), (ii), (iii), (iv) or other revolving Indebtedness prepaid(v) of this clause (b) shall be applied, first, ratably to the Term Loans to the principal repayment installments thereof on a pro rata basis and, thereafter, to the extent accompanied by a permanent reduction Revolving Credit Loans 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 manner set forth in clauses clause (v) and (vii) belowb)(viii).
Appears in 1 contract
Mandatory. (ia) 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 (except Credit Agreement Refinancing Indebtedness6.01(1) and the related Compliance Certificate has been delivered pursuant to Section 6.02(1)), commencing with the delivery of financial statements for the fiscal year ended December 31, 2020, the Borrower shall prepay shall, subject to clauses (f) and (g) of this Section 2.05(2), prepay, or Cash Collateralizecause to be prepaid, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loans (the “ECF Payment Amount”) equal to 100.0050% (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 minus the sum of:
(i) without duplication of the gross cash proceeds received by amounts deducted pursuant to clause (2)(c) of the Borrower or any definition 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 Flow,” all voluntary prepayments, repurchases or redemptions (commencing with including loan buybacks (including pursuant to Section 2.05(1)(e)) permitted under the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at applicable Indebtedness in an amount equal to the end cash amount actually paid in respect 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 such purchased Indebtedness and only to the extent that such Indebtedness has been cancelled) and prepayments in connection with lender replacement provisions (including pursuant to Section 3.07) of:
(I) 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 Indebtednessthat are secured, in each casewhole or in part, secured by the Collateral on a pari passu basis with the Liens securing Closing Date Term Loans,
(II) Credit Agreement Refinancing Indebtedness, Permitted Incremental Equivalent Debt and any other Indebtedness in the Obligations hereunderform of notes or term loans, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior case to the date such Consolidated Excess Cash Flow prepayment is due extent secured by the Collateral, in whole or in part, on a pari passu basis with the First Lien Obligations under this Agreement (but without regard to the control of remedies),
(III) Revolving Loans (in the each case of any such Revolving Credit Loans or other revolving Indebtedness prepaidthis clause (III), to the extent accompanied by a permanent reduction in the relevant commitmentcorresponding Revolving Commitments or other revolving commitments),
(IV) revolving loans under any revolving facility (other than under the Revolving Facility or any Incremental Revolving Facility) that is secured, in whole or in part, by the Collateral on a pari passu basis with the First Lien Obligations under this Agreement (but without regard to the control of remedies) (in each case of this clause (IV) (and with respect to any revolving facility under clause (II) above), to the extent accompanied by a permanent reduction in the case corresponding revolving commitments),
(ii) without duplication of all the amounts deducted pursuant to clause (2)(g) of the definition of Excess Cash Flow, the amount of Restricted Payments paid in cash during such prepaymentsperiod (other than Restricted Payments made pursuant to Section 7.05(2)(o)),
(iii) without duplication of amounts deducted pursuant to clause (2)(j) of the definition of “Excess Cash Flow” 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 7.05),
(iv) without duplication of amounts deducted pursuant to clause (2)(j) of the definition of “Excess Cash Flow” in prior fiscal years, the amount of Capital Expenditures, Capitalized Software Expenditures or acquisitions of intellectual property accrued or made in cash during such period, and
(v) without duplication of amounts deducted pursuant to clause (2)(j) of the definition of “Excess Cash Flow,” the aggregate Contract Consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries and any Planned Expenditures by the Borrower or any of its Restricted Subsidiaries relating to investments (including Permitted Acquisitions, investments constituting Permitted Investments and investments made pursuant to Section 7.05) or similar transactions, Capital Expenditures, Restricted Payments, acquisitions of intellectual property, any scheduled payment, repurchase or redemption of Indebtedness that was permitted by the terms of this Agreement to be incurred and paid, repurchased or redeemed or permitted tax distributions (including permitted tax distributions permitted pursuant to Section 7.05(2)(n)(ii)), in each case, to be consummated or made, as applicable, during the period of four consecutive fiscal quarters of the Borrower following the end of such period (except to the extent financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)); provided that, to the extent that such prepayments are the aggregate amount (excluding in each case any amount financed with internally generated cash the proceeds of long-term Indebtedness (other than revolving Indebtedness) of the Borrower or any Restricted Subsidiary) of such aforementioned items during such following period of four consecutive fiscal quarters is less than the applicable Contract Consideration and Planned Expenditures(excluding in each case any amount financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)) deducted under this clause (v), the amount of such shortfall shall be added to the calculation of the applicable ECF Payment Amount at the end of such period of four consecutive fiscal quarters. in the case of each of the immediately preceding clauses (i) , (ii), (iii) and (iv), made during such fiscal year (without duplication of any payments or prepayments, repurchases or redemptions in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 2.05(2)(a) for any prior fiscal year) or, at the option of the Borrower, after the fiscal year-end but prior to the date a prepayment pursuant to this Section 2.05(2)(a) is required to be made in respect of such fiscal year and in each case to the extent such amounts and/or payments are not funded with the proceeds of long-term Indebtedness (other than any Indebtedness under a Revolving Facility or any other revolving credit facilities); provided that (w) a prepayment of Term Loans pursuant to this Section 2.05(2)(a) in respect of any fiscal year shall only be required in the amount (if any) by which the ECF Payment Amount for such fiscal year exceeds $2.5 million, (x) the ECF Percentage shall be 25% if the First Lien Net Leverage Ratio as of the end of the fiscal year covered by such financial statements was less than or equal to 4.25 to 1.00 and greater than 3.75 to 1.00 (with the ECF Percentage being calculated after giving effect to such prepayment at a rate of 50%) and (y) the ECF Percentage shall be 0% if the First Lien Net Leverage Ratio as of the end of the fiscal year covered by such financial statements was less than or equal to 3.75 to 1.00 (with the ECF Percentage being calculated after giving effect to such prepayment at a rate of 25%); provided further that:
(A) if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is required to Discharge Other Applicable Indebtedness with Other Applicable ECF pursuant to the terms of the documentation governing such Indebtedness, then the Borrower (or any Restricted Subsidiary) may apply such portion of Excess Cash Flow otherwise required to repay the Term Loans pursuant to this Section 2.05(2)(a) on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness requiring such Discharge at such time) 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(2)(a) shall be reduced accordingly (provided that the portion of such Excess Cash Flow allocated to the Other Applicable Indebtedness shall not exceed the amount of such Other Applicable ECF required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof and the remaining amount, if any, of such portion of Excess Cash Flow shall be allocated to the Term Loans to the extent required in accordance with the terms of this Section 2.05(2)(a)); and
(B) to the extent the lenders or holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased or prepaid with such portion of Excess Cash Flow, 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 to the extent required in accordance with the terms of this Section 2.05(2)(a).
(i) If (I) the Borrower or any Restricted Subsidiary makes an Asset Sale or (II) any Casualty Event occurs, which results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Proceeds, the Borrower shall prepay, or 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 such Restricted Subsidiary of such Net Proceeds, subject to clause (ii) of this Section 2.05(2)(b) and clauses (2)(f) and (g) of this Section 2.05, an aggregate principal amount of Term Loans equal to 100% of all Net Proceeds realized or received; provided that no prepayment shall be required pursuant to this Section 2.05(2)(b)(i) with respect to such portion of such Net Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest (or entered into a binding commitment or a binding letter of intent to reinvest) in accordance with Section 2.05(2)(b)(ii); provided further that
(A) if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is required to Discharge any Other Applicable Indebtedness with Other Applicable Net Proceeds pursuant to the terms of the documentation governing such Indebtedness, then the Borrower (or any Restricted Subsidiary) may apply such Net Proceeds otherwise required to repay the Term Loans pursuant to this Section 2.05(2)(b)(i) on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness requiring such Discharge at such time), 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(2)(b)(i) shall be reduced accordingly (provided that the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Other Applicable Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof and the remaining amount, if any, of such portion of Net Proceeds shall be allocated to the Term Loans to the extent required in accordance with the terms of this Section 2.05(2)(b)(i)); and
(B) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased or prepaid with such portion of such Net Proceeds, 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 to the extent required in accordance with the terms of this Section 2.05(2)(b)(i).
(ii) With respect to any Net Proceeds realized or received with respect to any Asset Sale or any Casualty Event, the Borrower or any Restricted Subsidiary, at its option, may reinvest all or any portion of such Net Proceeds in assets useful for their business within (I) eighteen (18) months following receipt of such Net Proceeds or (II) if the Borrower or any Restricted Subsidiary enters into a legally binding commitment or a legally binding letter of intent to reinvest such Net Proceeds within eighteen (18) months following receipt thereof, within the later of (A) eighteen (18) months following receipt thereof and (B) one hundred eighty (180) days of the date of such legally binding commitment or legally binding letter of intent; provided that the Borrower may elect to deem expenditures that otherwise would be permissible reinvestments that occur prior to receipt of such Net Proceeds to have been reinvested in accordance with the provisions of this Section 2.05(2)(b)(ii) (it being understood that such deemed expenditures shall have been made no earlier than the earliest of notice to the Administrative Agent, execution of a definitive agreement for such Asset Sale and consummation of such Asset Sale or Casualty Event); provided further that if any Net Proceeds are no longer intended to be or cannot be so reinvested at any time after such reinvestment election, and subject to clauses (f) and (g) of this Section 2.05(2), an amount equal to any such Net Proceeds shall be applied within five (5) Business Days after the Borrower reasonably determines that such Net Proceeds are no longer intended to be or cannot be so reinvested to the prepayment of the Term Loans as set forth in this Section 2.05.
(c) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness (i) not expressly permitted to be incurred or issued pursuant to Section 7.02 or (ii) that constitutes Other Loans or Credit Agreement Refinancing Indebtedness, in each case, incurred or issued to refinance any Class (or Classes) of Term Loans resulting in Net Proceeds (as opposed to such Credit Agreement Refinancing Indebtedness or Other Loans arising out of an exchange of existing Term Loans for such Credit Agreement Refinancing Indebtedness or Other Loans), the Borrower shall prepay, or cause to be prepaid, an aggregate principal amount of Term Loans of any Class or Classes (in each case, as directed by the Borrower) 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.
(i) Except as otherwise set forth in any Refinancing Amendment, Extension Amendment or Incremental Amendment, each prepayment of Term Loans required by Sections 2.05(2)(a), (b) and (c)(i) shall be allocated to any Class of Term Loans outstanding as directed by the Borrower, shall be applied pro rata to Term Lenders within such Class of Term Loans, based upon the outstanding principal amounts owing to each such Term Lender under such Class of Term Loans and shall be applied to reduce such remaining scheduled installments of principal within such Class of Term Loans as directed by the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andabsent such direction, in the case direct order of all maturity); provided that
(I) such prepayments made after the end may not be directed to a later maturing Class of such Fiscal Year and Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Incremental Term Loans, Other Term Loans, Extended Term Loans or Replacement 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) in the event that there are two or more outstanding Classes of Term Loans with the same Maturity Date, such prepayments may not be directed to any such Class of Term Loans without at least a pro rata repayment of any Classes of Term Loans maturing on the same date (except that any Class of Incremental Term Loans, Other Term Loans, Extended Term Loans or Replacement Loans may specify that one or more other Classes of Term Loans with the same Maturity Date may be prepaid prior to such Consolidated Excess Class of Term Loans maturing on the same date), and
(ii) each prepayment of Term Loans required by Section 2.05(2)(c)(ii) shall be allocated to any Class or Classes of Term Loans being refinanced as directed by the Borrower and shall be applied pro rata to Term Lenders within each such Class, based upon the outstanding principal amounts owing to each such Term Lender under each such Class of Term Loans.
(e) If for any reason the aggregate Outstanding Amount of Revolving Loans, Swing Line Loans and L/C Obligations at any time exceeds the aggregate Revolving Commitments then in effect, the Borrower shall promptly prepay Revolving Loans and Swing Line Loans 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 Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) L/C Obligations pursuant to be applied as set forth in clauses (v) and (vii) below.this Section 2.05(2)(e
Appears in 1 contract
Sources: First Lien Credit Agreement (Convey Holding Parent, Inc.)
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 Term Loans that are junior to the Term B Loans in 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 Term B 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 Term B 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 Revolving Credit Loans or other revolving Indebtedness prepaid, during such fiscal year to the extent accompanied the 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 are funded with Internally Generated Cash of the applicable Borrower(s) (the difference of (A) minus (B), the “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 Term B Loans and 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 Term B Loans in 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 Term B Loans in 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 Term B Loans in 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 end date of such Fiscal Year and rejection) be applied to prepay the Term Loans (other than Term Loans that are junior to the Term B Loans in right of security) in accordance with the terms hereof.
(ii) If (1) the Lead Borrower or any Restricted Subsidiary of the Lead Borrower Disposes of any property or assets (other than any Disposition of any property or assets permitted by ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) or (s)) or (2) any Casualty Event occurs, which results in the realization or receipt by the Lead Borrower or any Restricted Subsidiary of Net Proceeds, the Borrowers shall cause to be prepaid on or prior to the date which is five (5) Business Days after the date of the realization or receipt by the Lead Borrower or any Restricted Subsidiary of such Consolidated Excess Cash Flow prepayment is due, Net Proceeds an aggregate principal amount of Term Loans (other than Term Loans that are junior to the Term B Loans in right of security) in an amount equal to 100% of all Net Proceeds realized or received; provided that if at the time that any such prepayment would be required, either Borrower (or any Restricted Subsidiary) is required to prepay or offer to repurchase any Other Applicable Indebtedness, then such Borrower may apply such portion of such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount so deducted of the Term Loans (other than Term Loans that are junior to the Term B Loans in right of security) 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 (other than Term Loans that are junior to the Term B Loans in 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 Term B Loans in right of security) 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 (other than Term Loans that are junior to the Term B Loans in right of security) in accordance with the terms hereof.
(iii) If either Borrower or any Restricted Subsidiary incurs or issues (x) any Refinancing Term Loans (or Refinancing Equivalent Debt) resulting in Net Proceeds (as opposed to Refinancing Term Loans or Refinancing Equivalent Debt arising out of a cashless exchange of existing Term Loans for such Refinancing Term Loans or Refinancing Equivalent Debt) or (y) any other Indebtedness not described in the preceding clause (x) (other than, in the case of this clause (y), Indebtedness not prohibited under Section 7.03), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans (other than Term Loans that are junior to the Term B Loans in right of security) 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 such Net Proceeds are received by the Lead Borrower or such Restricted Subsidiary.
(iv) [Reserved].
(v) If for any reason the aggregate Revolving Credit Exposures at any time exceeds the aggregate Revolving Credit Commitments then in effect, 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 deducted from required to Cash Collateralize the Excess Cash Flow 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 Revolving Credit Exposures exceed the aggregate Revolving Credit Commitments then in effect; and provided, further, that notwithstanding the foregoing, if the sum of the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations exceeds the aggregate amount of Revolving Credit Commitments then in effect by less than 5.0%, and any subsequent periodsuch excess is due solely to movements in currency exchange rates, then the Borrowers shall not be required to take the foregoing actions to eliminate any such excess.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) (such amount, the “Excess Cash Flow Amount”A) to shall be applied either (x) ratably to each Class of Term Loans then outstanding (other than any such Term Loans that are junior to the Term B Loans in right of security) or (y) as set forth requested by the Lead Borrower in clauses (v) and 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 future amortization applicable to each such Class for which prepayments will be made, in a manner determined at the discretion of the Lead 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
Appears in 1 contract
Sources: Credit Agreement (Trinseo S.A.)
Mandatory. (i) Within seven Business Days after financial statements have been delivered pursuant to Section 6.01(a), commencing with the delivery of financial statements for the fiscal year ending October 31, 2018, if the total amount of Excess Cash Flow exceeds $25.0 million, the Borrower shall prepay an aggregate principal amount of Term Loans equal to the excess (if any) of (A) 50% of the amount of Excess Cash Flow that is in excess of $25.0 million (such percentage, the “ECF Percentage”) for the fiscal year covered by such financial statements over (B) the amount of any voluntary prepayments made (i) on the Loans (in the case of payments pursuant to Section 2.05(a)(ii), calculated as the amount of cash actually expended to make such payment) and (ii) on any other Indebtedness secured by Liens on a pari passu basis with Liens securing the Loans, in each case of clauses (i) and (ii), during such period or fiscal year or after such period or fiscal year and prior to when such Excess Cash Flow prepayment is due; and provided that, to the extent any voluntary prepayments of Indebtedness as described in clauses (B)(i) and (ii) above made during the current period or fiscal year are applied to reduce the Excess Cash Flow payment for the prior period or fiscal year pursuant to the foregoing sentence, then such prepayments shall not be deducted with respect to the Excess Cash Flow prepayment for the current period or fiscal year; provided, further, that if the Total Secured Net Leverage Ratio for the fiscal year ended prior to such prepayment date (with the Total Secured Net Leverage Ratio recalculated to give effect to any voluntary prepayment described in clauses (B)(i) and (ii) above after such period or fiscal year and prior to when such Excess Cash Flow prepayment is due on a Pro Forma Basis) is less than 2.50 to 1.00, the ECF Percentage shall be reduced to 0%.
(ii) In addition to any other mandatory prepayments pursuant to this Section 2.05(b), on each date on or after the Closing Date upon which the Borrower or any other Loan Party receives any cash proceeds from any Asset Sale, to the extent the aggregate Net Sale Proceeds from all prior Asset Sales in the same fiscal year exceed $70,000,000, an amount equal to 100% of the Net Sale Proceeds from all such Asset Sales in excess of the first $70,000,000 shall be applied within seven Business Days thereafter as a mandatory prepayment of the Term Loans in accordance with Section 2.05(b)(v); provided, however, that such Net Sale Proceeds shall not be required to be so applied on such date so long as no Event of Default then exists and such Net Sale Proceeds shall be used to purchase (or commit to purchase) assets used or to be used in the businesses permitted pursuant to Section 7.07 within 365 days following the receipt of such Net Cash Proceeds, and provided, further, that if all or any portion of such Net Sale Proceeds are not so reinvested within such 365-day period (or committed to be reinvested pursuant to a legally binding commitment within such 365-day period and not so reinvested within 180 days thereafter) (or such earlier date, if any, as the Borrower or the relevant Loan Party determines not to reinvest the Net Sale Proceeds from such Asset Sale as set forth above), such remaining portion shall be applied on the last day of such period (or such earlier date, as the case may be) as provided above in this Section 2.05(b)(ii) without regard to the preceding proviso.
(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 Term 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 promptly 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 addition to any other mandatory prepayments pursuant to this Section 2.05Section2.05(b), on each date on or after the event that (a) there Closing Date upon which the Borrower or any other Loan Party receives any cash proceeds from any Recovery Event, to the extent the aggregate Net Insurance Proceeds from all prior Recovery Events in the same fiscal year exceed $70,000,000, an amount equal to 100% of the Net Insurance Proceeds from all such Recovery Events in excess of the first $70,000,000 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 applied within seven Business Days thereafter as a mandatory repayment of the Term Loans equal in accordance with Section 2.05(b)(v); provided, however, that such Net Insurance Proceeds shall not be required to be so applied on such date so long as no Event of Default shall have occurred and be continuing and such Net Insurance Proceeds shall be used to replace or restore any properties or assets in respect of which such Net Insurance Proceeds were paid (Aor committed to be paid) or purchase (or commit to purchase) assets used or to be used in 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 Indebtednessbusinesses permitted pursuant to Section 7.07, in each case, within 365 days following the date of the receipt of such Net Insurance Proceeds, and provided, further that if all or any portion of such Net Insurance Proceeds are not so used within 365 days after the date of the receipt of such Net Insurance Proceeds (or if committed to be so applied pursuant to a legally binding commitment within such 365-day period and not so used within 180 days thereafter) (or such earlier date, if any, as the Borrower or the relevant Loan Party determines not to reinvest the Net Insurance Proceeds relating to such Recovery Event as set forth above), such remaining portion shall be applied on the last day of such period (or such earlier date, as the case may be) as provided above in this Section 2.05(iv) without regard to the immediately preceding proviso.
(v) The Borrower shall notify the Administrative Agent (which shall in turn notify the Lenders) at least five Business Days prior to the required date of any prepayment of the Term Loans pursuant to this Section 2.05(b), specifying the amount of such prepayment. Each such prepayment of the outstanding Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied to the principal repayment installments thereof in direct order of maturity, and subject to Section 2.17, each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the Facilities; provided that any Lender (and, to the extent provided in the Refinancing Amendment for any Credit Agreement Refinancing Debt, any Lender that holds such Credit Agreement Refinancing Debt) may elect, by notice to the Administrative Agent in writing (via hand delivery, facsimile or electronic delivery) at least one (1) Business Day prior to the prepayment date, to decline all or any portion of any prepayment of its Term Loans or Credit Agreement Refinancing Debt pursuant to this Section 2.05(b) (such declined amounts, the “Declined Proceeds”). The aggregate amount of any Declined Proceeds may be retained by the Borrower and the Restricted Subsidiaries and used for any purpose permitted by this Agreement. Notwithstanding anything herein to the contrary, if, at the time that any prepayment would be required under Section 2.05(b), the Borrower or any Restricted Subsidiary is required to repay or repurchase any other Indebtedness (or offer to repay or repurchase such Indebtedness) that is secured on a pari passu basis with the Liens securing Loans pursuant to the Obligations hereunder, in each case, made during terms of the documentation governing such Fiscal Year or after Indebtedness with the end proceeds of such Fiscal Year and prior to the date Asset Sale, such Consolidated Recovery Event or such Excess Cash Flow prepayment is due (such Indebtedness required to be so repaid or repurchased (or offered to be repaid or repurchased), the “Other Applicable Indebtedness”), then the relevant Person may apply the proceeds of such Asset Sale, such Recovery Event or such Excess Cash Flow on a pro rata (or less than pro rata) basis to the prepayment, repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Other Applicable Indebtedness; it being understood that (1) the portion of the proceeds of such Asset Sale, such Recovery Event or such Excess Cash Flow allocated to the Other Applicable Indebtedness shall not exceed the amount of the proceeds of such Asset Sale or 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 the proceeds of such Asset Sale, such Recovery Event or such Excess Cash Flow shall be allocated in accordance with the case terms hereof), and the amount of any the prepayment, repurchase or repayment of the Other Applicable Indebtedness that would have otherwise been required pursuant to this Section 2.05(b) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Revolving Credit Loans or other revolving Indebtedness prepaid, to repaid or repurchased, the extent accompanied by a permanent reduction in the relevant commitment, declined amount shall promptly (and in any event within ten Business Days after the case date of all such prepaymentsrejection) be applied in accordance with the terms hereof (without giving effect to this Section 2.05(b)(v)).
(vi) Notwithstanding any other provisions of Section 2.05(b)(i), (ii) or (iv), (A) to the extent that such prepayments are financed with internally generated cash any of or all the Borrower Net Sale Proceeds or Net Insurance Proceeds by a Foreign Subsidiary giving rise to a prepayment pursuant to Section 2.05(b)(ii) or (and not from the proceeds of Indebtedness iv) (a “Foreign Prepayment 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 dueare prohibited, provided that restricted or delayed by any Law from being repatriated to the Borrower or its Restricted Subsidiaries, the portion of such amount so deducted shall not be deducted from the Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow Amount so affected will not be required to be applied to repay Term Loans at the times provided in Section 2.05(b)(i) , (ii) or (iv), as the case may be, and such amounts may be retained by the applicable Foreign Subsidiary so long as the applicable Law prohibits, restricts or delays repatriation to the Borrower, and to the extent such repatriation of any subsequent period) (of such amountaffected Net Sale Proceeds, the “Net Insurance Proceeds or Excess Cash Flow Amount”becomes permitted under the applicable requirement of law or Organizational Document, such repatriation will be promptly effected and such repatriated Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow will be promptly applied to the repayment of the Loans pursuant to Section 2.05(b)(i),(ii) or (iv), as applicable, and (B) to the extent that the Borrower has determined in consultation with the Administrative Agent that repatriation of any of or all the Net Sale Proceeds or Net Insurance Proceeds of any Foreign Prepayment Event or Excess Cash Flow would have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, the Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in Section 2.05(b)(i),(ii) or (iv), as set forth the case may be, and such amounts may be retained by the applicable Foreign Subsidiary; provided that the Borrower shall use commercially reasonable efforts under any local law to permit such repatriation and to mitigate any such adverse tax consequences, in clauses each case within the 450 day period described in the immediately succeeding clause, provided, further, that if within 450 days after the day on which the Borrower would otherwise be obligated to make a payment under Section 2.05(b)(i), (vii) or (iv) the Borrower reasonably determines that repatriation of any of or all the Net Sale Proceeds or Net Insurance Proceeds of any Foreign Prepayment Event or Excess Cash Flow (A) is no longer prohibited under local law or (B) would no longer have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow shall be promptly applied to the repayment of the Loans pursuant to Section 2.05(b)(i), (ii) or (iv), as applicable, but subject to any reinvestment rights provided therein and the payment of any Other Applicable Indebtedness in accordance with Section 2.05(b)(v).
(vii) belowIf for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall within one (1) 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.
(viii) Prepayments of the Revolving Credit Facility made pursuant to Section 2.05(b)(vii), 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. 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.
Appears in 1 contract
Sources: Refinancing Amendment to Credit Agreement (Ciena Corp)
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)(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 October 2, 2015) minus (B) the sum of (x) all voluntary prepayments 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 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 Credit Loans or other revolving credit facilities 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 the Revolving Credit Commitments or any other revolving credit facility commitments are permanently reduced by the amount of such payments, in the case of each of the immediately preceding clauses (x) and (y), to the extent such prepayments are financed with Internally Generated Cash; provided that a prepayment of the aggregate principal amount of Term Loans pursuant to this Section 2.05(b)(i) in respect of any fiscal year shall only be required in the amount by which the ECF Payment Amount for such fiscal year exceeds $10,000,000; provided further that (x) the ECF Percentage shall be 25.0% if the Total Net First Lien Leverage Ratio for 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 for the fiscal year covered by such financial statements was less than or equal to 2.50:1.00.
(ii) (A) If (x) the Borrower or any of its Restricted Subsidiaries Disposes of any Indebtedness (other than Indebtedness expressly permitted to be incurred property or issued assets pursuant to Section 7.03 7.05(f) or (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay j) (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 subject to clause (b)(vi) of this Section 2.05, an aggregate principal amount of Term 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 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 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 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 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 that such prepayments are financed Administrative Agent of its intent to reinvest in accordance 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 2.05(b)(ii)(B).
Appears in 1 contract
Sources: Credit Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Mandatory. (i) Upon Subject to Section 2.05(b)(ix), within five (5) Business Days after financial statements are required to have been delivered pursuant to Section 6.01(a) (commencing with the incurrence or issuance fiscal year ended December 31, 2024) 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 (the “Calculated ECF Amount”) equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period then ended minus, at the Borrower’s option, (B) the sum of (1) all voluntary prepayments of Term Loans during such Excess Cash Flow Period (and, at the sole discretion of the Borrower, the period from the end of such Excess Cash Flow Period to the date that the prepayment pursuant to this Section 2.05(b)(i) is made, in which case such amounts shall not be deducted in future Excess Cash Flow Periods), (2) all voluntary prepayments of Incremental Term Loans (only to the extent such Incremental Term Loans so prepaid were pari passu in right of payment and security to the Initial Term Loans) during such Excess Cash Flow Period (and, at the sole discretion of the Borrower, the period from the end of such Excess Cash Flow Period to the date that the prepayment pursuant to this Section 2.05(b)(i) is made, in which case such amounts shall not be deducted in future Excess Cash Flow Periods) and (3) all voluntary prepayments of Revolving Credit Loans during such Excess Cash Flow Period (and, at the sole discretion of the Borrower, the period from the end of such Excess Cash Flow Period to the date that the prepayment pursuant to this Section 2.05(b)(i) is made, in which case such amounts shall not be deducted in future Excess Cash Flow Periods) to the extent the Revolving Credit Commitments are permanently reduced by the amount of such prepayments, and in the case of each of the immediately preceding clauses (1), (2) and (3), to the extent such prepayments (x) are not financed with the proceeds of long-term Indebtedness (other than the proceeds of Revolving Credit Loans) and (y) were not otherwise deducted in determining the amount of prepayment pursuant to this Section 2.05(b)(i) in any prior period, in each case, during such Excess Cash Flow Period (and, at the sole discretion of the Borrower, the period from the end of such Excess Cash Flow Period to the date that the prepayment pursuant to this Section 2.05(b)(i) is made, in which case such amounts shall not be deducted in future Excess Cash Flow Periods).
(ii) Subject to Section 2.05(b)(ix), if (1) Holdings, the Borrower or any other Subsidiary of its Restricted Subsidiaries Holdings Disposes of any Indebtedness property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d), (e), (f), (g), (h), (i), (k), (l), (m), (n), (p), (q), or (r)) or (2) any Casualty Event occurs, which results in the realization or receipt by Holdings, the Borrower or any other Subsidiary of Holdings 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 such realization or receipt by Holdings, the Borrower or any other Subsidiary of Holdings of 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 realized or received.
(iii) Subject to Section 2.05(b)(ix), if Holdings, the Borrower or any other Subsidiary of Holdings incurs or issues any Indebtedness expressly after the Closing Date not 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) 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, together with the gross cash proceeds received by applicable Prepayment Premium, if any, on or prior to 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 five (90) days thereof in connection therewith, within one (15) Business Day following Days after the receipt thereof by Holdings, the Borrower or such Restricted SubsidiarySubsidiary of such Net Proceeds.
(iv) No later than the Required Contribution Date, (cash proceeds from the issuance of Equity Cure Securities in an amount equal to the Financial Covenant Cure Amount necessary to cure such prepayments (or Cash Collateralization) to be applied as set forth in clauses Financial Covenant Default.
(v) and [reserved].
(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 other Classes of Term Loans then outstanding, (iiB) In the event that (a) there shall be Consolidated Excess Cash Flow applied, with respect to each such Class for any Fiscal Year (commencing with which prepayments will be made, in a manner determined at the Fiscal Year ending December 31discretion of the Borrower in the applicable notice and, 2022if not specified, in direct order of maturity to repayments thereof required pursuant to Section 2.07(a) and (bC) there are any shall be paid to the Appropriate Lenders with respect to each applicable Class of Term Loans outstanding at the end in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each 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 Class of Term Loans, loans under subject to clause (vii) of this Section 2.05(b). Notwithstanding clause (A) in the immediately preceding sentence, any Incremental Equivalent DebtAmendment 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 (iii) 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), provided that, the Borrower may rescind (or delay the date of prepayment identified in) such 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 consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment, the appropriate clause of this Section 2.05(b) applicable to such mandatory prepayment, and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made by the Borrower. The Administrative Agent may rely conclusively on such notice and shall have no obligation of any nature whatsoever to review or recalculate any amounts set forth therein. 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.
(viii) Promptly following written notice thereof to the Borrower by the Administrative Agent, 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, shall be repaid to the extent that such the aggregate Revolving Credit Exposure exceeds the aggregate amount of Revolving Credit Commitments.
(ix) All mandatory prepayments hereunder are financed with internally generated subject to permissibility under (A) local Law, rule or regulation (e.g., financial assistance, corporate benefit, restrictions on up-streaming cash intra group and the fiduciary and statutory duties of the Borrower (directors of the relevant Subsidiaries and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributionsHoldings) 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: Credit Agreement
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 10) Business Days after financial statements are required to be incurred or issued 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), 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 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 Fiscal Year less Excess Cash Flow Period, (B) the sum (except to the extent such voluntary prepayments are funded with the proceeds of long term Indebtedness (other than revolving loans or intercompany Indebtedness)) of (1) all voluntary prepayments of Term Loans made during such Excess Cash Flow Period, 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, at the election of the Lead Borrower, after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all other voluntary prepayments of the Initial Term Loans, loans under any Incremental Equivalent DebtTerm Loans, Revolving Other Term Loans, Other Notes, Permitted Debt Exchange Notes, Credit Loans and/or loans under Agreement Refinancing Indebtedness and any other Indebtedness, in each case, secured on a pari passu basis with the Liens securing Initial Term Loans actually paid in cash in respect of the Obligations hereunderprincipal amount of such Initial Term Loans,
(ii) If (1) the Lead Borrower or any Restricted Subsidiary of the Lead Borrower Disposes of any property pursuant to Sections 7.05(j), (k) and (m) and, in each case, made during such Fiscal Year outside the ordinary course of business or after (2) any Casualty Event occurs, which results in the end realization or receipt by the Lead Borrower or any Restricted Subsidiary of such Fiscal Year and the Lead Borrower of Net Proceeds, subject to this Section 2.05(b), the Borrowers 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 Lead Borrower or any Restricted Subsidiary of the Lead Borrower of such Consolidated Excess Cash Flow prepayment is due (Net Proceeds, an aggregate principal amount of Term Loans in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaid, an amount equal to the extent accompanied by a permanent reduction in the relevant commitment, and in the case Applicable Asset Sale Percentage of all such prepaymentsNet Proceeds; provided, to that if at the extent time that such prepayments are financed with internally generated cash any such
(iii) If the Lead Borrower or any Restricted Subsidiary of the Lead Borrower incurs or issues any Indebtedness after the Third Amendment Effective Date (and A) not from permitted to be incurred or issued pursuant to Section 7.03 or (B) that is intended to constitute Credit Agreement Refinancing Indebtedness in respect of any Class of Term Loans, the proceeds Borrowers shall cause to be prepaid an aggregate principal amount of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andTerm Loans (or, 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, if any, received therefrom on or prior to the date which is three (3) Business Days after the receipt by the Lead Borrower or such Consolidated Restricted Subsidiary of such Net Proceeds. In connection with any prepayment under Section 2.05(b)(iii)(B) that is consummated in respect of all or any portion of the Initial Term Loans prior to the date that is two years after the Third Amendment Effective Date, the Borrowers shall pay to the Term Lenders a fee equal to 1.00% of the aggregate principal amount of the Initial Term Loans subject to such prepayment.
(iv) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrowers shall promptly, following the earlier of written notice from the Administrative Agent and knowledge of the Lead Borrower, prepay Revolving Credit Loans in an aggregate amount equal to such excess.
(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 prepayment is dueattributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable Law or (y) restricted, provided that prohibited or delayed by applicable material constituent documents or material agreements so long as such restrictions described in this clause (y) are not created in contemplation of such prepayments, an amount so deducted shall not be deducted from equal to the portion of such Foreign Subsidiary Excess Cash Flow Amount 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 or material agreements would not otherwise permit repatriation to the United States (the Lead Borrower hereby agrees to use commercially reasonable efforts during the year following the date such prepayment would otherwise have been required to be paid to overcome or eliminate any subsequent period) (such amountrestrictions on repatriation, even if the “Borrowers do not intend to actually repatriate such cash, so that an amount equal to the full amount of such Foreign Subsidiary Excess Cash Flow Amount”) will otherwise be subject to be applied as set forth in clauses 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 Law or applicable material documents (v) and (vii) below.even if such cash is actually not repatriated), an amount equal to the amount of the
Appears in 1 contract
Sources: Credit Agreement (Redwire Corp)
Mandatory. Within ten (i10) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted Business Days after financial statements are required to be incurred or issued 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), 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 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 Fiscal Year less Excess Cash Flow Period, (B) the sum (except to the extent such voluntary prepayments are funded with the proceeds of long term Indebtedness (other than revolving loans or intercompany Indebtedness)) of (1) all voluntary prepayments of Term Loans made during such Excess Cash Flow Period, 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, at the election of the Lead Borrower, after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all other voluntary prepayments of the Initial Term Loans, loans under any Incremental Equivalent DebtTerm Loans, Revolving Other Term Loans, Other Notes, Permitted Debt Exchange Notes, Credit Loans and/or loans under Agreement Refinancing Indebtedness and any other Indebtedness, in each case, secured on a pari passu basis with the Liens securing Initial Term Loans actually paid in cash in respect of the Obligations hereunderprincipal amount of such Initial Term Loans, Incremental Term Loans, Other Term Loans, Other Notes, Permitted Debt Exchange Notes, Credit Agreement Refinancing Indebtedness and any other Indebtedness, in each case, made secured on a pari passu basis with the Term Loans during such Fiscal Year Excess Cash Flow Period, or at the election of the Lead Borrower, 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 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, (3) all voluntary prepayments of Revolving Credit Loans, Extended Revolving Credit Loans, Refinancing Revolving Credit Loans and Incremental Revolving Credit Loans secured on a pari passu basis with the Term Loans during such Excess Cash Flow Period, at the Lead Borrower’s option, or after year-end and prior to when such Excess Cash Flow prepayment is due, to the extent (x) the Revolving Credit Commitments, Extended Revolving Credit Commitments, Refinancing Revolving Credit Commitments or Revolving Commitment Increase, as the case may be, are permanently reduced by the amount of such payments and (y) such prepayments were not made with the proceeds of long term Indebtedness (other than the proceeds of revolving loans or intercompany loans) and (4) the amount equal to all payments in cash actually paid by the Borrowers or any other Restricted Subsidiary of the Parent in connection with (x) the buyback of Indebtedness secured on a pari passu basis with the Initial Term Loans to the extent such buybacks are funded with Internally Generated Cash and (y) in connection with mandatory assignments pursuant to Section 3.07; provided that that, to the extent any deduction is made pursuant to the foregoing clauses (B)(1) through (4) after year-end and prior to when such amount so deducted Excess Cash Flow prepayment is due, such prepayment shall not be deducted from with respect to the Excess Cash Flow Amount prepayment for the succeeding fiscal year; provided, further, that a prepayment of the principal amount of Term Loans pursuant to this Section 2.05(b)(i) in respect of any subsequent period) (fiscal year shall only be required in the amount by which such amount, the “Excess Cash Flow Amountprepayment for such fiscal year exceeds $1,000,000; provided, further that, at the option of the Lead Borrower, to the extent that the foregoing prepayments exceed the amount of payments otherwise due pursuant to this Section 2.05(b)(i) for the applicable fiscal year, any such amount in excess may be applied to reduce the amount of Excess Cash Flow prepayments in the immediately subsequent fiscal year; provided, further, that if at the time that any such prepayment would be required, the Borrowers are required to offer to repurchase permitted Indebtedness (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, in each case, pursuant to the terms of the documentation governing such Indebtedness with the Excess Cash Flow (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Excess Cash Flow on a pro rata basis (and not greater than 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 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; 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 (5) Business Days after the date of such rejection) be offered to the Lenders in accordance herewith to be applied as set forth to repay the Term Loans in clauses (v) and (vii) belowaccordance with the terms hereof).
Appears in 1 contract
Sources: Credit Agreement (Redwire Corp)
Mandatory. (i) Upon The Borrower shall, on each date 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 Revolving Credit Commitments are reduced pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))2.11, prepay the Borrower shall prepay (or Cash CollateralizeSwingline Loans, as applicable) an Revolving Loans, and, if necessary, cash collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Pro Rata Swingline Loans, Revolving Loans, and L/C Obligations equal then outstanding to 100.00% of the gross cash proceeds received by amount to 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 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)Revolving Credit Commitments have been so reduced.
(ii) In If at any time the event that sum of the unpaid principal balance of the Term Loans, the Incremental Term Loans (a) there if any), Swingline Loans, Revolving Loans, and the L/C Obligations then outstanding shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with in excess of the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans outstanding at Availability as determined on the end basis of such Fiscal Yearthe most recent Borrowing Base Certificate, the Borrower shall, no later than one-hundred-twenty-five shall within three (1253) days after Business Days and without notice or demand pay over 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 excess to the date such Consolidated Excess Cash Flow prepayment is due (in Administrative Agent for 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 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 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 Swingline Loans and Revolving Loans until paid in full, then to the Term Loans and the Incremental Term Loans (if any) on a combined ratable basis with respect to all such Loans until such Loans are paid in full, with any remaining balance to be held by the Administrative Agent in the Collateral Account as set forth security for the Guaranteed Obligations owing with respect to the Letters of Credit.
(iii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first ratably to any outstanding Loans under the Revolving Facility, but without a reduction of the Revolving Credit Commitments, until payment in clauses (vfull thereof with any balance applied ratably to the outstanding Loans under the Term Loan Facility. Each prepayment of Loans under this Section 2.8(b) and (vii) belowshall be made by the payment of the principal amount to be prepaid. Each cash collateralization of L/C Obligations shall be made in accordance with Section 9.4.
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 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 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 receipt thereof by the Borrower or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (viii) and (viiv) below).
(ii) [reserved];
(iii) Subject to the next sentence, each prepayment (or Cash Collateralization, as applicable) of Pro Rata Obligations pursuant to this Section 2.05(b) (excluding clause (b)(iv) following) 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 (v) 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; provided that any repayment required pursuant to clause (b)(i) shall be applied ratably to the Term Loans and amounts outstanding under the Revolving Credit Facility. 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 any prepayment of Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt). 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.
(iv) If for any reason the Total Revolving Credit Outstandings at any time exceed 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 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.
(v) 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 as directed by the Borrower to prepay Eurodollar Rate Loans.
(vi) 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 outstanding, each Term Lender may elect, by notice to the Administrative Agent at or prior to the end time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to any mandatory prepayment provisions relating to asset sale proceeds, excess cash flow, insurance proceeds or condemnation proceeds set forth in any Joinder Agreement pursuant to which any Incremental Term Loan Commitments are established or any Incremental Term Loans are made, to decline all (but not a portion) of its Applicable Percentage of such Fiscal Yearprepayment (such declined amounts, the Borrower shall, “Declined Proceeds”). Any Term Lender declining such prepayment shall give written notice thereof to the Administrative Agent by 11:00 a.m. no later than one-hundred-twenty-five (125) days one Business Day after the end date of such Fiscal Year, prepay an aggregate principal amount notice from the Administrative Agent. If a Lender fails to deliver a notice of the Term Loans equal to (A) the ECF election declining receipt of its Applicable Percentage of such Consolidated Excess Cash Flow for mandatory prepayment to the Administrative Agent within the time frame specified above, any such Fiscal Year less (B) all voluntary prepayments 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, 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
Mandatory. Subject to the provisions of the Intercreditor Agreement but only following the payment in full of the First Lien Obligations (provided that outstanding letters of credit under the First Lien Senior Credit Facilities shall be deemed paid when cash collateralized as provided therein) and the termination of the First Lien Senior Credit Facilities:
(i) Upon The Borrower shall, on the incurrence or issuance by 90th day following 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))each Fiscal Year, 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 beginning with the Fiscal Year ending December 31, 2022) in which the First Lien Obligations have been paid in full and the First Lien Senior Credit Facilities have been terminated (b) there are any Term Loans provided that outstanding at letters of credit under the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal YearFirst Lien Senior Credit Facilities shall be deemed paid when cash collateralized as provided therein), prepay an aggregate principal amount of the Term Loans Advances in an amount equal to to, (A) at any time when the ECF Percentage Total Leverage Ratio is greater than or equal to 4.00:1.00, 75% of the amount of Excess Cash Flow for such Consolidated Fiscal Year, (B) at any time when the Total Leverage Ratio is greater than or equal to 3.50:1.00 and less than 4.00:1.00, 50% of the amount of Excess Cash Flow for such Fiscal Year, (C) at any time when the Total Leverage Ratio is greater than or equal to 3.00:1.00 and less than 3.50:1.00, 25% of the amount of Excess Cash Flow for such Fiscal Year and (D) at any time when the Total Leverage Ratio is less than 3.00:1.00, 0% of the amount of Excess Cash Flow for such Fiscal Year.
(ii) The Borrower shall, on the date of receipt of any Net Cash Proceeds by any Loan Party or any of its Subsidiaries, in each case after the First Lien Obligations have been paid in full and the First Lien Senior Credit Facilities have been terminated (provided that outstanding letters of credit under the First Lien Senior Credit Facilities shall be deemed paid when cash collateralized as provided therein), 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 clauses (i) through (viii) of Section 5.02(e)), (B) all voluntary prepayments the incurrence or issuance by any Loan Party or any of Term Loansits Subsidiaries of any Debt (other than Debt incurred or issued pursuant to Section 5.02(b)), loans under (C) the issuance of any Incremental Equivalent Debtclass of equity, Revolving Credit Loans and/or loans under other Indebtedness(D) any capital contribution and (E) any Casualty Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, prepay an aggregate principal amount of the Advances in each case, secured on a pari passu basis with an amount equal to (x) 100% of the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end amount of such Fiscal Year and prior to the date such Consolidated Excess Net Cash Flow prepayment is due (Proceeds in the case of any such Revolving Credit Loans or other revolving Indebtedness prepaidclauses (A), to the extent accompanied by a permanent reduction in the relevant commitment(B) and (E), and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash (y) 50% of the Borrower (and not from the proceeds amount of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andsuch Net Cash Proceeds, in the case of all such clauses (C) and (D). No prepayment made with Net Cash Proceeds received as a result of a transaction not permitted by Section 5.02(b), (e) or (g)(i) shall be deemed either to cure any Default resulting from a breach of Section 5.02(b), (e) or (g)(i) or to waive any Lender's rights and remedies in connection therewith.
(iii) All prepayments under this subsection (b) shall be made after the end of such Fiscal Year and prior together with (A) accrued interest to the date of such Consolidated Excess Cash Flow prepayment is dueon the principal amount prepaid, provided (B) any amounts owing pursuant to Section 9.04(c), and (C) any prepayment premium payable pursuant to clause (c) of this Section 2.04. If any payment of Eurodollar Rate Advances otherwise required to be made under this Section 2.04(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 2.05 until the last day of the applicable Interest Period therefor.
Appears in 1 contract
Mandatory. (i) Upon The Borrower shall, on the incurrence or issuance by 120th day following 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 (commencing with the Fiscal Year ending ended 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 Year2006), prepay an aggregate principal amount of the Term Loans Advances comprising part of the same Borrowings in an amount equal to 50% (A) or, if the ECF Percentage Leverage Ratio as of the end of such Consolidated Fiscal Year is 4.00:1.00 or lower, 25%) of the amount of Excess Cash Flow for such Fiscal Year less minus the aggregate principal amount of all optional prepayments of the Advances (other than Revolving Credit Advances unless there is a corresponding permanent reduction in the Revolving Credit Commitments) made during such Fiscal Year. Each such prepayment shall be applied ratably first in order of maturity with respect to scheduled amortization payments under each of the Term Facilities (including, for the avoidance of doubt, if required by the terms of any Incremental Facility, such Incremental Facility) scheduled to occur within 12 months of such prepayment, in accordance with each Term Lender’s Term B Percentage (as amended pursuant to Section 2.17(a) to give effect to any Incremental Facility), second pro rata to the remaining amortization payments under each of the Term Facilities, in accordance with each Term Lender’s Term B Percentage and third to the Revolving Credit Facility as set forth in clause (v) below.
(ii) The Borrower shall, on the date of receipt of any Net Cash Proceeds by any Loan Party or any of its Subsidiaries prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the Applicable Prepayment Percentage for such Net Cash Proceeds. Each such prepayment shall be applied ratably first in order of maturity with respect to scheduled amortization payments under each of the Term Facilities scheduled to occur within 12 months of such prepayment, in accordance with each Term Lender’s Term B Percentage, second pro rata to the remaining amortization payments under each of the Term Facilities, in accordance with each Term Lender’s Term B Percentage and third to the Revolving Credit Facility as set forth in clause (v) below.
(iii) If, on any date, the Administrative Agent notifies the Borrower that the sum of (A) the aggregate Available Amount of all Letters of Credit denominated in Dollars plus (B) the Equivalent in Dollars of the Available Amount of all voluntary prepayments Letters of Term LoansCredit denominated in Foreign Currencies exceeds the Letter of Credit Facility on such date, loans under the Borrower shall, as soon as practicable and in any Incremental Equivalent Debtevent within two Business Days after receipt of such notice, 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.
(iv) If, on any date, the Administrative Agent notifies the Borrower that the sum of (A) the aggregate principal amount of all Revolving Credit Loans and/or loans Advances, Letter of Credit Advances and Swingline Advances denominated in Dollars then outstanding plus (B) the Equivalent in Dollars of the aggregate principal amount of all Revolving Credit Advances and Letter of Credit Advances denominated in Foreign Currencies then outstanding plus (C) the aggregate Available Amount of all Letters of Credit denominated in Dollars plus (D) the Equivalent in Dollars of the Available Amount of all Letters of Credit denominated in Foreign Currencies exceeds 105% of the Revolving Credit Facility on such date, the Borrower shall, as soon as practicable and in any event within two Business Days after receipt of such notice, prepay the outstanding principal amount of any Revolving Credit Advances owing by the Borrower in an aggregate amount sufficient to reduce such sum to an amount not to exceed 100% of the Revolving Credit Facility on such date together with any interest accrued to the date of such prepayment on the aggregate principal amount of Revolving Credit Advances prepaid. The Agent shall give prompt notice of any prepayment required under other Indebtednessthis Section 2.06(b) to the Borrower and the Lenders, and shall provide prompt notice to the Borrower of any such notice of required prepayment received by it from any Lender.
(v) Prepayments of the Revolving Credit Facility made pursuant to clause (i) or (ii) 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 and third applied to prepay Revolving Credit Advances then outstanding comprising part of the same Borrowings until such Advances are paid in full, 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 no corresponding 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) Revolving Credit Commitments; and, in the case of all such prepayments made of the Revolving Credit Facility required pursuant to clause (i) or (ii) above, the amount remaining (if any) after the end prepayment in full of the Advances then outstanding may be retained by the Borrower. Upon the drawing of any Letter of Credit for which funds are on deposit in the L/C Cash Collateral Account, such Fiscal Year funds shall be applied to reimburse the Issuing Bank or Revolving Credit Lenders, as applicable.
(vi) Anything contained in this Section 2.06(b) to the contrary notwithstanding, (A) if, following the occurrence of any “Asset Sale” (as such term is defined in either of the Floating Rate Indenture or the Senior Subordinated Indenture) by any Loan Party or any of its Subsidiaries, the 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 either of the Floating Rate Indenture or the Senior Subordinated Indenture) 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 the Borrower from being required to make an “Asset Sale Offer” (as defined in either of the Floating Rate Indenture or the Senior Subordinated Indenture) in connection with such “Asset Sale,” and prior the Borrower shall have failed to so commit or to so apply an amount equal to such “Net Proceeds” at least 60 days before the applicable Commitment Date or Application Date, as the case may be, or (B) if the Borrower at any other time shall have failed to apply or commit or cause to be applied an amount equal to any such “Net Proceeds,” and, within 60 days thereafter assuming no further application or commitment of an amount equal to such “Net Proceeds” the Borrower would otherwise be required to make an “Asset Sale Offer” in respect thereof, then in either such case the Borrower shall immediately pay or cause to be paid to the Administrative Agent an amount equal to such “Net Proceeds” to be applied to the payment of the Advances in such amounts as shall excuse the Borrower from making any such “Asset Sale Offer.”
(vii) All prepayments under this subsection (b) shall be made together with accrued interest to the date of such Consolidated Excess Cash Flow prepayment is dueon the principal amount prepaid, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in together with any subsequent period) (such amount, the “Excess Cash Flow Amount”) amounts owing pursuant to be applied as set forth in clauses (v) and (vii) belowSection 9.04(c).
Appears in 1 contract
Sources: Credit Agreement (Hexacomb CORP)
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) 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. The Borrower shall make a prepayment of the Loans until Paid in Full upon the occurrence of any of the following at the following times and in the following amounts:
(i) Upon If, at any time, the incurrence or issuance by aggregate amount of the Borrower or Lenders’ Revolving Credit Exposure (excluding for this purpose any outstanding Letters 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))that have been Cash Collateralized) exceeds the Aggregate Revolving Commitments, the Borrower shall prepay promptly (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 and in 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 therewithevent, within one (1) Business Day following receipt thereof by after the Borrower or date when such Restricted Subsidiary, excess first arose) (i) repay the Revolving Loans and/or Swingline Loans in an amount necessary to eliminate such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) excess and (viiii) below)if, after giving effect to the repayment in full of all outstanding Revolving Loans such excess has not been eliminated, Cash Collateralize the outstanding Letters of Credit.
(ii) In Mandatory prepayments of the event that (a) there Loans shall be Consolidated Excess applied, first, to prepayment of the Swingline Loans; second, if all Swingline Loans have been paid in full, to repayment of outstanding LC Disbursements; third, if all Swingline Loans and outstanding LC Disbursements have been paid in full, to prepayment of the Revolving Loans; and fourth, if all Swingline Loans, outstanding LC Disbursements and Revolving Loans have been paid in full, to Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31Collateralize all LC Obligations, 2022) and (b) there are any Term Loans outstanding at the end if any, in an amount equal to 105% of such Fiscal YearLC Obligations, the Borrower shallon terms, 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 pursuant 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 commitmentdocumentation, and in the case of all such prepayments, form and substance reasonably satisfactory to the extent that such prepayments are financed with internally generated cash of the Borrower (Administrative Agent 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) beloweach applicable Issuing Bank.
Appears in 1 contract
Sources: Credit Agreement (Acme United Corp)
Mandatory. (i) Upon Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing with the fiscal year ending December 31, 2019) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(ix) below, 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, repurchases or redemptions of Term Loans 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 (x) Section 2.05(a)(v), the actual purchase price paid in cash pursuant to a “Dutch Auction” and (y) Section 10.07(l), the actual purchase price paid in cash pursuant to open-market purchases), (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 made to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments and (3) all voluntary prepayments, repurchases or redemptions of Senior Notes during such fiscal year or after year-end and prior to when such Excess Cash Flow payment is made, in the case of each of the immediately preceding clauses (1), (2) and (3), except to the extent financed with the proceeds of an incurrence or issuance by of other Indebtedness of Holdings or its Restricted Subsidiaries (other than revolving loans) and, 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 Borrower amount of Excess Cash Flow for such fiscal year is greater than the greater of $30,000,000 and 5% 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 (other than any Disposition of any property or assets permitted by Sections 7.05 (a), (b), (c), (d), (e), (g), (h)(i), (i), (l), (n), (o), (p), (r), (s), (t) or (u)), 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 “Applicable 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 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 such Senior Notes or other Indebtedness with the Net Proceeds of such Disposition or Casualty Event (such Indebtedness together with the Senior 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 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 (other than Indebtedness expressly permitted to be incurred or issued pursuant to not prohibited under Section 7.03 (except Credit Agreement Refinancing Indebtednessexcluding Section 7.03(t)), the Borrower shall prepay cause to be offered to be prepaid in accordance with clause (or Cash Collateralize, as applicableb)(x) below 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 Holdings or such Restricted Subsidiary of such Net Proceeds.
(iv) [reserved].
(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 Borrower shall promptly prepay or cause to be promptly prepaid (in any event, within five Business Days) Revolving Credit 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 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 each Class of Term Loans (as determined by the Borrower or among such Classes) then outstanding (provided that (i) any prepayment of its Restricted Subsidiaries from any such Term Loans with the Net Proceeds of Credit Agreement Refinancing 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 shall be applied as set forth in clauses (v) solely to each applicable Class of Refinanced Debt, 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 Class of Incremental Term Loans outstanding at the end may specify that one or more other Classes 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 and Incremental Term Loans may be prepaid prior to (A) the ECF Percentage such Class of such Consolidated Excess Cash Flow for such Fiscal Year less Incremental Term Loans); (B) all voluntary prepayments with respect to each Class of Term Loans, loans under any Incremental Equivalent Debteach 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 as directed by the Borrower (without premium or penalty) and, Revolving Credit Loans and/or loans under other Indebtednessabsent such direction, shall be applied in direct order of maturity to repayments thereof; and (C) each case, secured on a pari passu basis such prepayment shall be paid to the Lenders in accordance with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end their respective Pro Rata Shares of such Fiscal Year and 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 (i) through (iv) of this Section 2.05(b) at least four (4) 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 1 contract
Mandatory. At any time prior to the Conversion Date, if (i) Upon the incurrence or issuance by the Borrower issues any senior unsecured notes or other debt securities pursuant to the Fee Letter or otherwise or (ii) the Borrower (or any direct or indirect parent company of its Restricted Subsidiaries Borrower) makes any public Equity Offering or offering of Disqualified Stock, 100% of the cash proceeds of any Indebtedness such issuance, Equity Offering or offering of Disqualified Stock (other than Indebtedness expressly permitted net of any fees or expenses related thereto) shall be used to be incurred prepay the outstanding principal amount of the Loans, plus accrued and unpaid interest, in each case on or issued prior to the date that is one Business Day after the receipt of the applicable cash proceeds. Each prepayment of Loans pursuant to this Section 7.03 2.05(b) shall be paid to the Lenders in accordance with their respective Pro Rata Shares; provided that in the event any Initial Lender (except Credit Agreement Refinancing Indebtedness)or an Affiliate thereof) purchases debt securities from the Borrower pursuant to a Securities Demand Proposal under (and as defined in) the Fee Letter at an issue price above the level at which such Initial Lender (or its Affiliate) has reasonably determined such debt securities can be resold to a bona fide third party at the time of such purchase (and notifies the Borrower and the Administrative Agent thereof), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the gross net cash proceeds received by the Borrower or any in respect of its Restricted Subsidiaries from any such Indebtedness less debt securities may, at the option of such Initial Lender, be applied first to repay the Loans of such Initial Lender (provided that if there is more than one such Initial Lender, then such net cash proceeds will be applied pro rata to repay the Loans of all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated such Initial Lenders in proportion 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 Initial Lenders’ (or Cash CollateralizationAffiliate’s) 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 debt securities purchased from the Term Loans equal to (ABorrower) 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 being applied to prepay the date such Consolidated Excess Cash Flow prepayment is due (in the case of any such Revolving Credit Loans or held by 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) belowLenders.
Appears in 1 contract
Sources: Credit Agreement (WP Prism Inc.)
Mandatory. (i) Upon No later than the incurrence or issuance by Business Day occurring immediately after the Borrower day on which the Parent or any Subsidiary receives proceeds from the sale (including a liquidating dividend) of its Restricted Subsidiaries all or any portion of any Indebtedness (other than Indebtedness expressly Investment permitted to be incurred or issued pursuant to under Section 7.03 (except Credit Agreement Refinancing Indebtedness)7.14(k), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal make a mandatory prepayment of the Revolving Loans in the 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)proceeds.
(ii) In If on any March 31, June 30, September 30 or December 31 occurring after the event date hereof the sum of (i) the U.S. Dollar Equivalent of all outstanding Revolving Loans hereunder, (ii) the aggregate Original Dollar Amount of all outstanding Swingline Loans hereunder, and (iii) the L/C Obligations exceeds the Revolving Commitments as then in effect, the Borrower shall immediately prepay Revolving Loans in an aggregate amount such that after giving effect thereto the sum of (ai) there the U.S. Dollar Equivalent of all outstanding Revolving Loans hereunder, (ii) the aggregate Original Dollar Amount of all outstanding Swingline Loans hereunder, and (iii) the outstanding L/C Obligations is less than or equal to the Revolving Commitments as then in effect.
(iii) To the extent Term Loans remain outstanding, if after the Effective Date the Parent or any Subsidiary shall be Consolidated Excess Cash Flow for any Fiscal Year issue new equity securities (commencing whether common or preferred stock or otherwise), other than equity securities issued in connection with the Fiscal Year ending December 31Parent's Stock Compensation Program, 2022Employee Stock Purchase Plan, Stock Award and Incentive Plan and any similar programs or plans, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Parent or such Subsidiary in respect thereof. Promptly upon, and in no event later than the Business Day after, receipt by the Parent or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds.
(iv) To the extent Term Loans remain outstanding, if after the Effective Date the Parent or any Subsidiary shall issue any indebtedness for borrowed money (other than short-term working capital facilities in local currencies), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Parent or such Subsidiary in respect thereof. Promptly upon, and in no event later than the Business Day after, receipt by the Parent or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds.
(v) To the extent Term Loans remain outstanding, the Parent or any Subsidiary shall at any time or from time to time make or agree to make a Disposition, then the Borrower shall promptly notify the Administrative Agent of such proposed Disposition (including the amount of the estimated Net Cash Proceeds to be received by the Parent or such Subsidiary in respect thereof) and (by) there are any Term Loans outstanding at promptly upon, and in no event later than the end Business Day after, receipt by the Parent or the Subsidiary of the Net Cash Proceeds of such Fiscal YearDisposition, 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 in an aggregate amount equal to (A) 100% of the ECF Percentage amount 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 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) belowProceeds.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Jones Lang Lasalle Inc)
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) For any Excess Cash Flow Period, within ten Business Days after financial statements have been delivered or were required to 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 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 such Excess Cash Flow Period (commencing with the Excess Cash Flow Period ending on December 31, 2024), minus (B) the sum of:
(1) the aggregate amount of voluntary principal prepayments in cash of the Loans, Sustainable Revolving Credit Facility Loans (to the extent accompanied by a permanent reduction in the Sustainable Revolving Credit Facility Commitment), Specified Refinancing Term Loans or Indebtedness (other than any revolving 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 last day of the relevant Excess Cash Flow Period or, at the option of the Swedish 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 permitted under Section 3.08 and assignments made to Parent or any of its Subsidiaries permitted under this Agreement, with credit given for the actual amount of the cash payment) (except prepayments of secured revolving Indebtedness that are not accompanied by a corresponding permanent commitment reduction), 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 (except for revolving Indebtedness used to prepay any other revolving Indebtedness)); AMERICAS 126348241
(2) [reserved],
(3) the amount of Taxes paid and/or capital expenditures either made in cash by any 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 (or, at the Swedish 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 Swedish 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 any Borrower 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) other than, in each case, any Investments in cash or Cash Equivalents or Investments in Parent 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 (or, at the Swedish 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 Swedish 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), and
(5) at the Borrowers’ 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, or capital expenditures to be consummated or made during the period of four consecutive fiscal quarters of Parent following the end of such fiscal year other than, in each case, any Investments in cash or Cash Equivalents or Investments in Parent or any Restricted Subsidiaries; 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; 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 4.00:1.00 but greater than 3.00:1.00 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 3.00:1.00, 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) $5,000,000 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.
(ii) If any Asset Sale (or series of related Asset Sales) results in the receipt by the Borrowers or any Restricted Subsidiary of aggregate Net Cash Proceeds in excess of $10,000,000 per fiscal year (such threshold amount, the “De-Minimis Amount” and any such event, a “Relevant Transaction”), then except to the extent the Swedish 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) and (ix), 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 Borrowers or such Restricted Subsidiary; provided that the AMERICAS 126348241 Borrowers may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness (other than Indebtedness under the Sustainable Revolving Credit Facility Agreement) 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 Section 1.08).
(iii) Upon the incurrence or issuance by the Parent, Holdings, 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 Term Loan Tranches in an amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrowers or such Restricted Subsidiary.
(iv) [reserved].
(v) [reserved].
(vi) 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 Swedish 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 as applicable, being refinanced pursuant thereto or (y) Term Loans with the proceeds of any Refinancing Notes issued or incurred to the extent permitted under Section 7.01(a), which shall be applied to the Term Loan Tranche, as applicable, being refinanced pursuant thereto) and, in the case of a Term Loan Tranche, within a Term Loan Tranche as directed by the Swedish Borrower (and absent such direction, in direct order of 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 to the principal installments thereof as directed by the Swedish Borrower (and absent such direction, to the remaining scheduled installments with respect to such Term Loan Tranche in direct order of maturity). Each prepayment of 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 Borrowers in respect of such prepayment pursuant to Section 3.06.
(vii) All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a SOFR Loan on a date other than 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 applicable, any additional amounts required pursuant to Section 2.05(a)(iii).
(viii) 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 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 (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 applicable Borrowers, 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 Subsidiary (it being understood and agreed that the Borrowers 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 prohibition, restriction, delay or risk). AMERICAS 126348241
(ix) Notwithstanding any other provisions of this Section 2.05, to the extent that the Swedish 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 result in material adverse tax consequences (as reasonably determined by the Swedish Borrower in consultation with the Administrative Agent and the Lead Lender, 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; provided that to the extent that the repatriation of the relevant Net Cash Proceeds of any Foreign Disposition or Excess Cash Flow, directly or indirectly, from the relevant Subsidiary would no longer have a material adverse Tax consequence (as reasonably determined by the Swedish Borrower) within the 365-day period following the Foreign Disposition or the end of the applicable Excess Cash Flow Period, as the case may be, an amount equal to the Net Cash Proceeds or Excess Cash Flow, as applicable and to the extent available, not previously applied pursuant to this sub-clause (ix) shall be promptly applied (net of any Taxes payable as a result of such repatriation) to the repayment of the Term Loans equal pursuant to Section 2.05 as otherwise required above.
(Ax) Notwithstanding any other provisions of this Section 2.05(b), the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary Borrowers 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 (Oatly Group AB)
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).
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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
(i) is due or projected by the Borrower to be consummated or made during the period of eighteen (18) 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), (b)(iii) and (b)(vii) 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 7.05(j) or (except Credit Agreement Refinancing Indebtedness))y) any Casualty Event occurs, which results in the Borrower shall prepay (realization 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 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 1 contract
Mandatory. (i) For any Excess Cash Flow Period, within five (5) Business Days after financial statements are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate is required to be delivered pursuant to Section 6.02(a), 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, minus (B) the sum of the aggregate amount of voluntary principal prepayments of the Loans 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, in each case other than to the extent that any such prepayment is funded with the proceeds of any long-term Indebtedness (other than revolving loans), proceeds of any Casualty Event, proceeds of non-ordinary course asset sales (in each case to the extent not required to prepay the Loans pursuant to Section 2.05(b)(ii)) or proceeds from the issuance or sale of Equity Interests of the Borrower; provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to (x) [Redacted]% if the Total Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was less than [Redacted]:1.00 but greater than or equal to [Redacted]:1.00 and (y) [Redacted]% if the Total Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was less than [Redacted]:1.00.
(ii) If any Asset Sale (or any Disposition that is not an Asset Sale but that requires such Net Cash Proceeds to be applied in accordance with Section 7.04(b) pursuant to the definition of “Asset Sale”) or Casualty Event (or series of related Asset Sales (or any Dispositions that are not Asset Sales but that require such Net Cash Proceeds to be applied in accordance with Section 7.04(b) pursuant to the definition of “Asset Sale”) or Casualty Events) results in the receipt by the Borrower or any Subsidiary of Net Cash Proceeds (a “Relevant Transaction”) in excess of $2,000,000 in any fiscal year, then, except to the extent the Borrower elects in such notice to reinvest all or a portion of such Net Cash Proceeds in accordance with, and as permitted by, Section 7.04(b), the Borrower shall prepay an aggregate principal amount of Term Loans in an amount equal to 100% of the Net Cash Proceeds received from such Relevant Transaction in excess of the threshold referred to above within five (5) Business Days of receipt thereof (or within five (5) 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 Subsidiary.
(iii) Upon the incurrence 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 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 in an amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary.
(Aiv) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less [Reserved].
(Bv) all voluntary prepayments [Reserved].
(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. Amounts to be applied to a Term Loan Tranche in connection with prepayments made pursuant to this Section 2.05(b) shall be applied in reverse order of remaining scheduled installments, including the final installment, with respect to such Term Loan Tranche on a pro rata basis. 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 Eurodollar Rate Loans under such Facility; provided that, if there are not 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 Eurodollar 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 Eurodollar Rate Loan on a date other revolving Indebtedness prepaidthan the last day of an Interest Period therefor, any amounts owing in respect of such Eurodollar Rate Loan pursuant to Section 3.06 and, to the extent accompanied by a permanent reduction in applicable, any additional amounts of accrued and unpaid interest on the relevant commitment, and in the case of all such prepayments, prepaid amount or as 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 2.05(a)(iii).
Appears in 1 contract
Mandatory. (ia) Upon the incurrence or issuance by [reserved].
(A) If (x) the Borrower or any of its Restricted Subsidiaries Subsidiary Disposes of any Indebtedness (other than Indebtedness expressly permitted to be incurred property or issued assets pursuant to Section 7.03 7.05(f) or (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay j) (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 subject to clause (b)(vi) of this Section 2.05, an aggregate principal amount of the Term 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 or any Restricted Subsidiary is required to repay, redeem or repurchase or offer to repay, redeem or repurchase Indebtedness (Aother than revolving Indebtedness) 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, that is secured on a pari passu basis (but without regard to control of remedies) with the Liens securing Obligations pursuant to the Obligations hereunderterms 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 95 the Term 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 Term Loans in each caseaccordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase, made during redemption 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)(A) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such Fiscal Year indebtedness repurchased, redeemed or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the end date of such Fiscal Year and rejection) 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 the applicable date such Consolidated Excess Cash Flow that prepayment is due (in the case of any such Revolving Credit Term Loans or other revolving Indebtedness prepaidwould have otherwise been required pursuant to this Section 2.05(b)(ii)(A), given written notice to the extent accompanied by a permanent reduction Administrative Agent of its intent to reinvest in accordance with Section 2.05(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 relevant commitmentapplication of Section 2.05(b)(ii)(A)) or any Casualty Event, and in at the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash option of the Borrower, the Borrower (and not from the proceeds of Indebtedness may reinvest all or the sale or issuance of Equity Interests or equity contributions) and, in the case of all such prepayments made after the end any portion of such Fiscal Year Net Cash Proceeds in assets useful for its or any of its Restricted Subsidiary’s business (x) within twelve (12) months following receipt of such Net Cash Proceeds or (y) if the Borrower or a Restricted Subsidiary enters into a legally binding commitment to reinvest such Net Cash Proceeds within twelve (12) months following receipt thereof, within one hundred and prior to the date eighty (180) days after 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.twelve
Appears in 1 contract
Sources: Credit Agreement (Solo Brands, Inc.)
Mandatory. (i) Upon Within ten (10) Business Days after financial statements have been delivered pursuant to Section 5.1(a) and Section 5.1(b) (commencing with the incurrence first full fiscal quarter after the Completion Date) and the related Compliance Certificate has been delivered pursuant to Section 5.2(a), the Borrower shall prepay an aggregate principal amount of Term Loans in an amount equal to (A) 100% of Excess Cash Flow minus (B) the sum of, without duplication, all voluntary prepayments or issuance permitted purchases of Term Loans during such Excess Cash Flow Period or, without duplication across Excess Cash Flow Periods, after the end of such Excess Cash Flow Period and prior to when such Excess Cash Flow prepayment is due minus (C) the aggregate amount deposited into the Debt Service Reserve Account (such that amounts on deposit therein are equal to or less than the Debt Service Reserve Amount), during such Excess Cash Flow Period or, without duplication across Excess Cash Flow Periods, after the end of such Excess Cash Flow Period and prior to when such Excess Cash Flow prepayment is due.
(i) Within three (3) Business Days (or, if earlier, substantially concurrently with any mandatory prepayment of loans under the Revolving Credit Agreement pursuant to Section 2.10(b)(ii) thereof as in effect as of the Twelfth Amendment Effective Date (as defined therein)) after receipt of any net proceeds of the FEMA Make Whole by the Borrower, any Subsidiary or any of their respective Affiliates, the Borrower shall prepay an aggregate principal amount of Loans in an amount equal to 12.5% of such FEMA Make Whole proceeds on such date of receipt.
(ii) If (x) the Borrower or any of its Subsidiaries consummates an Asset Sale (subject at all times to the restrictions set forth in Section 6.4(c) that prohibit the sale of any FLNG2 Collateral) (other than the Fifth Amendment Asset Sale) or (y) any Recovery Event occurs, and the transactions described in the foregoing clauses (x) and (y) result in the receipt by the Borrower and its Subsidiaries of Net Proceeds (any such transaction or series of related transactions being a “Relevant Transaction”), the Borrower shall give written notice to the Administrative Agent thereof promptly after the date of receipt of such Net Proceeds and the Borrower shall, prepay an aggregate principal amount of Term Loans in an amount equal to the Net Proceeds received from such Relevant Transaction within five (5) Business Days of receipt thereof by the Borrower or such Subsidiary; provided that, the Borrower (or any Restricted Subsidiary) may use such Net Proceeds to prepay or offer to repurchase, on a ratable basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and the Other Applicable Indebtedness at such time), (A) Permitted Pari Passu Secured Refinancing Debt (as defined in the TLB Credit Agreement as of the date hereof) or any other Indebtedness permitted hereunder to the extent secured by ▇▇▇▇▇ on the Collateral on a pari passu basis with the Obligations (or, in each case, any Refinancing Indebtedness incurred in respect thereof that is secured by Liens on the Collateral on a pari passu basis with the Obligations) or (B) Indebtedness under the Equal Priority Obligations pursuant to the terms of the documentation governing such Indebtedness (such Permitted Pari Passu Secured Refinancing Debt, Indebtedness under the Equal Priority Obligations or such other Indebtedness (or such Refinancing Indebtedness incurred in respect thereof) which the borrower elects to prepay or offer to repurchase, “Other Applicable Indebtedness”); provided further that if the Relevant Transaction involves (1) an Asset Sale (including a Specified Asset Sale) constituting Collateral (other than FLNG2 Assets) so long as the aggregate Net Proceeds do not exceed $350 million or (2) any Asset Sale of assets not constituting Collateral, then the Net Proceeds of such assets may be applied to Other Applicable Indebtedness (other than Indebtedness under the Revolving Credit Agreement, LC Facility or other revolving indebtedness that constitutes Equal Priority Obligations unless such prepayment is accompanied by permanent reductions of the commitments thereunder) on a non-ratable basis, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.10(b)(iii) 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 (and any Other Applicable Indebtedness required to be repaid with such declined amount) in accordance with the terms hereof; provided further that if the Recovery Event involves any FLNG2 Collateral, 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 that is five (5) Business Days after the later of (i) receipt by the Borrower or any of its Restricted Subsidiaries of such Net Proceeds and (ii) a determination that any Indebtedness proceeds of such Recovery Event are Net Proceeds in accordance with sub-clauses (other than Indebtedness expressly II) and (III) of the proviso in sub-clause (a) of the definition thereof; provided further that if the Borrower or any of its Subsidiaries disposes of any FLNG2 Collateral in breach of this Agreement, 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 that is one (1) Business Days after the receipt by the Borrower or any of its Restricted Subsidiaries of such Net Proceeds (without the ability by the Borrower to reinvest such Net Proceeds as set forth in the definition of “Net Proceeds”).
(iii) If the Borrower or any of its Restricted Subsidiaries incurs or issues any Indebtedness, Disqualified Stock or Preferred Stock after the Closing Date not permitted to be incurred or issued pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))6.3, 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 date which is five (5) Business Days after the receipt by the Borrower or a Guarantor of such Net Proceeds.
(iv) If the Borrower or any of its Subsidiaries receives any Extraordinary MPD Payments, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of the gross cash proceeds received Net Proceeds of such Extraordinary MPD Payments on or prior to the date which is five (5) Business Days after the later of (i) receipt by the Borrower or any of its Restricted Subsidiaries from of such Net Proceeds and (ii) a determination that any proceeds of such Indebtedness less all reasonable Extraordinary MPD Payment are Net Proceeds in accordance with the proviso in sub-clause (c) of the definition thereof;
(v) Each prepayment of Term Loans pursuant to Section 2.10(a)(iii) (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 (vi) below, and customary out-of-pocket legalto the extent permitted pursuant to clause (2) of the immediately following sentence below, underwriting to any Class or Classes of Term Loans with a Maturity Date preceding the Maturity Date of the other 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 (C) shall be paid to the Appropriate Lenders in accordance with their respective pro rata share (or other feesapplicable share provided by this Agreement) of each such Class of Term Loans, costs and expenses incurred or reasonably anticipated subject to clause (vi) of this Section 2.10(b).
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be incurred within ninety made by the Borrower pursuant to clauses (90i) days thereof in connection therewiththrough (iv) of this Section 2.10(b) at least five (5) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the 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 Lender with a Commitment may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, within the “Declined Proceeds”) of Term Loans required to be made (other than a prepayment required to be made pursuant to clause (iv) of this Section 2.10(b)) by providing written notice (each, 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 ▇▇▇▇▇▇’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 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 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 . Any Declined Proceeds shall be retained 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 but shall not be deducted from increase the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) amount of Restricted Payments able to be applied as set forth in clauses (v) and (vii) belowmade under Section 6.1(a)(2).
Appears in 1 contract
Mandatory. (i) Upon The Borrower shall, reasonably promptly following the incurrence or issuance receipt by the Borrower or of (A) Net Cash Proceeds from any Covered Asset Sales but in no event later than three Business Days after receipt thereof, (B) Net Cash Proceeds from the incurrence of its Restricted Subsidiaries Debt permitted by Section 5.07(a)(xii) relating to a bridge financing of any Indebtedness Covered Asset Sale or (other than Indebtedness expressly C) Net Cash Proceeds from the incurrence of Debt permitted by Section 5.07(b)(iv) relating 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 a bridge financing 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 YearCovered Asset Sale, prepay an aggregate principal amount of the Term Loans and prepay or cash collateralize the Drax LOC Liabilities in an amount equal to the Banks' Ratable Share of such Net Cash Proceeds. Each such prepayment shall be applied ratably to each of the Term Loan Facilities and the Drax Letter of Credit Facility as set forth in clause (c) below (it being understood that for purposes of calculating such ratable share prior to the Tranche A Term Loan Facility being paid in full, the aggregate amount of the Revolving Credit Loan Commitments shall be deemed to be part of the Tranche A Term Loan Facility).
(ii) The Borrower shall, reasonably promptly following the receipt of (A) the ECF Percentage Net Cash Proceeds from any Asset Sale of any Capital Stock of a Revolving Credit Loan/Tranche A Term Loan Guarantor or any Asset Sale of any assets of such Consolidated Excess Cash Flow for such Fiscal Year less Revolving Credit Loan/Tranche A Term Loan Guarantor or any of its Subsidiaries, (B) all voluntary prepayments Net Cash Proceeds from the incurrence of Debt permitted by Section 5.07(a)(xii) relating to a bridge financing of any Asset Sale described in clause (A), (C) Net Cash Proceeds from the incurrence of Debt permitted by Section 5.07(b)(iv) relating to a bridge financing of any Asset Sale described in clause (A) or (D) until the Tranche A Term Loans, loans under any Incremental Equivalent Debt, Loan Facility is repaid in full and the Revolving Credit Loans and/or loans under other IndebtednessLoan Facility is repaid in full and the Revolving Credit Loan Commitments are permanently reduced to zero, an amount equal to the Net Cash Proceeds from the incurrence by a Revolving Credit Loan/Tranche A Loan Guarantor or any of its Subsidiaries of Debt permitted by Section 5.07(b)(viii) but in each caseno event later than three Business Days after receipt thereof, secured on a pari passu basis with prepay the Liens securing Revolving Credit Loan Facility and the Obligations hereunder, Tranche A Term Loan Facility in each case, made during such Fiscal Year or after an aggregate amount equal to the end Banks' Ratable Share of such Fiscal Year Net Cash Proceeds. Each such prepayment shall be applied ratably to the Tranche A Term Loan Facility and the Revolving Credit Loan Facility based on the amounts outstanding at such time under the Tranche A Term Loan Facility and the aggregate amount of the Revolving Credit Commitments at such time.
(iii) The Borrower shall, reasonably promptly following receipt of (A) Net Cash Proceeds from any Asset Sale of any Capital Stock of the Tranche C Term Loan Guarantor or any Asset Sale of any assets of the Tranche C Term Loan Guarantor or any of its Subsidiaries, (B) Net Cash Proceeds from the incurrence of Debt permitted by Section 5.07(a)(xii) relating to a bridge financing of any Asset Sale described in clause (A), (C) Net Cash Proceeds from the incurrence of Debt permitted by Section 5.07(b)(iv) relating to a bridge financing of any Asset Sale described in clause (A) or (D) until the Tranche C Term Loan Facility is repaid in full, an amount equal to the Net Cash Proceeds from the incurrence by the Tranche C Term Loan Guarantor or any of its Subsidiaries of Debt permitted by Section 5.07(b)(ix) but in no event later than three Business Days after receipt thereof, prepay the Tranche C Term Loan Facility in an aggregate amount equal to the Banks' Ratable Share of such Net Cash Proceeds.
(iv) The Borrower shall, reasonably promptly following the date of receipt of Net Cash Proceeds from the issuance of Debt by the Borrower permitted by Section 5.07(a)(xi) but in no event later than three Business Days after receipt thereof, prepay an aggregate principal amount of the Term Loans and prepay or cash collateralize the Drax LOC Liabilities in an aggregate amount equal to the Banks' Ratable Share of such Net Cash Proceeds. Each such prepayment shall be applied ratably to each of the Term Loan Facilities and the Drax Letter of Credit Facility as set forth in clause (c) below (it being understood that for purposes of calculating such ratable share prior to the date such Consolidated Excess Cash Flow prepayment is due (Tranche A Term Loan Facility being paid in full, the case aggregate amount of any such the Revolving Credit Commitments shall be deemed to be part of the Tranche A Term Loan Facility).
(v) Subject to clause (e) below, the Borrower shall, reasonably promptly following the date of receipt of Net Cash Proceeds from any Equity Issuance by the Borrower but in no event later than three Business Days after receipt thereof, prepay an aggregate principal amount of the Term Loans and prepay or other revolving Indebtedness prepaidcash collateralize the Drax LOC Liabilities in an aggregate amount equal to the Banks' Ratable Share of 50% of such Net Cash Proceeds. Each such prepayment shall be applied ratably to each of the Term Loan Facilities and the Drax Letter of Credit Facility as set forth in clause (c) below (it being understood that for purposes of calculating such ratable share prior to the Tranche A Term Loan Facility being paid in full, the aggregate amount of the Revolving Credit Commitments shall be deemed to be part of the Tranche A Term Loan Facility).
(vi) The Borrower shall, on the date of receipt of Net Cash Proceeds in excess of $100,000,000 from the issuance of Debt by any Subsidiary of the Borrower permitted pursuant to Section 5.07(b)(ii) (but only to the extent accompanied by a permanent reduction in applicable pursuant to the relevant commitmentsecond proviso thereof), and in the case of all such prepaymentsSection 5.07(b)(vi), 5.07(b)(viii) (to the extent that such prepayments the Tranche A Term Loan Facility is repaid in full and the Revolving Credit Facility is repaid in full and the Revolving Credit Loan Commitments are financed with internally generated cash permanently reduced to zero) and 5.07(b)(ix) (to the extent the Tranche C Term Loan Facility is repaid in full) prepay an aggregate principal amount of the Borrower (Term Loans and not from prepay or cash collateralize the proceeds Drax LOC Liabilities in an aggregate amount equal to the Banks' Ratable Share of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andan amount equal to 100%, in the case of Debt issued by IPALCO, and in all other cases, an amount equal to 75% of such prepayments made Net Cash Proceeds. Each such prepayment shall be applied ratably to each of the Term Loan Facilities and the Drax Letter of Credit Facility as set forth in clause (c) below (it being understood that for purposes of calculating such ratable share prior to the Tranche A Term Loan Facility being paid in full, the aggregate amount of the Revolving Credit Commitments shall be deemed to be part of the Tranche A Term Loan Facility).
(vii) The Borrower shall, not later than 31 days after the end of each fiscal year, so long as the Minimum Liquidity Level on the last day of such Fiscal Year fiscal year is greater than $400,000,000, prepay an aggregate principal amount of the Term Loans and prior prepay or cash collateralize the Drax LOC Liabilities in an aggregate amount equal to the date such Consolidated Excess lesser of the Banks' Ratable Share of (A) 75% of the Adjusted Free Cash Flow for such fiscal year and (B) the maximum amount of Adjusted Free Cash Flow for such fiscal year so that the Minimum Liquidity Level on the last day of such fiscal year after giving effect to this prepayment is due, provided that such amount so deducted shall would not be deducted from the Excess Cash Flow Amount in any subsequent period) (less than $400,000,000. Each such amount, the “Excess Cash Flow Amount”) to prepayment shall be applied ratably to each of the Term Loan Facilities and the Drax Letter of Credit Facility as set forth in clauses clause (vc) and below (vii) belowit being understood that for purposes of calculating such ratable share prior to the Tranche A Term Loan Facility being paid in full, the aggregate amount of the Revolving Credit Commitments shall be deemed to be part of the Tranche A Term Loan Facility).
Appears in 1 contract
Sources: Credit, Reimbursement and Exchange Agreement (Aes Corporation)
Mandatory. (i) Following the end of each fiscal year of the Company, commencing with the fiscal year ending September 30, 2022, the Company shall prepay Term B Loans in an aggregate amount equal to (A) the applicable ECF Prepayment Percentage of Excess Cash Flow for such fiscal year less (B) the aggregate principal amount (along with any associated premium, make-whole or penalty payments actually paid in cash) of Term Loans, Incremental Term Loans and (to the extent accompanied by a permanent reduction of the Aggregate Revolving Credit Commitments in the same amount) Revolving Loans prepaid pursuant to Section 2.05(a)(i) or, solely with respect to prepayments made with Net Cash Proceeds resulting from Non-Core Asset Dispositions, pursuant to Section 2.05(b)(ii), in each case 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) is required less (C) the aggregate amount of cash payments actually made for Permitted Acquisitions and permitted Investments (including Investments in Joint Ventures and Minority Investments, but excluding Investments in cash and Cash Equivalents) by the Company and its Restricted Subsidiaries 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) is required (but excluding all Permitted Acquisitions and permitted Investments to the extent funded with the proceeds of Indebtedness (other than extensions of credit under the Revolving Credit Facility)) less (D) the aggregate amount of cash payments actually made pursuant to a binding contract in connection with a permitted Disposition up to the amount that is required to be paid so that, including and giving effect to such cash payment, the value of the assets being Disposed equal the liabilities being assumed by the purchaser of such assets and/or liabilities (as determined by the Company in good faith) (but excluding all such cash payments to the extent funded with the proceeds of Indebtedness (other than extensions of credit under the Revolving Credit Facility)), with such prepayments pursuant to this clause (i) to be applied as set forth in clause (v) below. Each prepayment pursuant to this clause (i) 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 the Company or any of its Restricted Subsidiaries Disposes of any property after the 2021 Refinancing Amendment Effective Date (other than in the ordinary course of business, and other than any Disposition of any property permitted by Section 7.05(a), (b), (c), (d), (e), (g), (h), (j), (k), (l), (m), (o), (q)(ii) or (r)) which, in any such case, results in the realization by such Person of Net Cash Proceeds, the Company shall prepay an aggregate principal amount of Term Loans equal to (1) if the Consolidated Leverage Ratio is greater than 3.75 to 1.00 on a pro forma basis immediately after giving effect to the Disposition of such property (and all other applicable pro forma adjustments, including any incurrence and/or repayment of Indebtedness in connection therewith), 100%, (2) if the Consolidated Leverage Ratio is less than or equal to 3.75 to 1.00 and greater than 3.00 to 1.00 on a pro forma basis immediately after giving effect to the Disposition of such property (and all other applicable pro forma adjustments, including any incurrence and/or repayment of Indebtedness in connection therewith), 50% and (3) if the Consolidated Leverage Ratio is less than or equal to 3.00 to 1.00 on a pro forma basis immediately after giving effect to the Disposition of such property (and all other applicable pro forma adjustments, including any incurrence and/or repayment of Indebtedness in connection therewith), 0%, in each case, of the Net Cash Proceeds received therefrom in excess of $150,000,000 in the aggregate for the Net Cash Proceeds received from all such Dispositions during the immediately preceding twelve month period immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (v) below); 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 Company (as notified by the Company to the Administrative Agent on or prior to the date of such Disposition), and so long as no Event of Default shall have occurred and be continuing, the Company or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as (A) within 365 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), (B) if a definitive agreement to so reinvest has been executed within such 365-day period, then such reinvestment shall have been consummated within 180 days after such 365-day period (in each case, as certified by the Company in writing to the Administrative Agent), and (C) in the case of Dispositions by AECOM Capital or any Restricted Subsidiary of AECOM Capital, within two years after receipt of such Net Cash Proceeds such reinvestment shall have been consummated; 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 Term Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon the occurrence of a Recovery Event with respect to the Company or any of its Restricted Subsidiaries after the 2021 Refinancing Amendment Effective Date which, in any such case, results in the realization by such Person of Net Cash Proceeds, the Company shall prepay an aggregate principal amount of Term Loans equal to (1) if the Consolidated Leverage Ratio is greater than 3.75 to 1.00 on a pro forma basis immediately after giving effect to such Recovery Event (and all other applicable pro forma adjustments in accordance with the terms hereof, including any incurrence and/or repayment of Indebtedness), 100%, (2) if the Consolidated Leverage Ratio is less than or equal to 3.75 to 1.00 and greater than 3.00 to 1.00 on a pro forma basis immediately after giving effect to such Recovery Event (and all other applicable pro forma adjustments in accordance with the terms hereof, including any incurrence and/or repayment of Indebtedness in connection therewith), 50% and (3) if the Consolidated Leverage Ratio is less than or equal to 3.00 to 1.00 on a pro forma basis immediately after giving effect to such Recovery Event (and all other applicable pro forma adjustments in accordance with the terms hereof, including any incurrence and/or repayment of Indebtedness in connection therewith), 0%, in each case, of the Net Cash Proceeds received therefrom in excess of $150,000,000 in the aggregate for the Net Cash Proceeds received from all such Recovery Events during the immediately preceding twelve month period immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (v) below); 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 Company (as notified by the Company to the Administrative Agent within 45 days following the date of such Recovery Event), and so long as no Event of Default shall have occurred and be continuing, the Company or such Restricted Subsidiary 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 so long as (A) within 365 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), (B) if a definitive agreement (including, without limitation, a construction agreement) to so reinvest has been executed within such 365-day period, then such reinvestment shall have been consummated within 180 days after such 365-day period (in each case, as certified by the Company in writing to the Administrative Agent), and (C) in the case of Recovery Events with respect to AECOM Capital or any Restricted Subsidiary of AECOM Capital, within two years after receipt of such Net Cash Proceeds such reinvestment shall have been consummated; 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 Term Loans as set forth in this Section 2.05(b)(iii).
(iv) Upon the incurrence or issuance after the 2021 Refinancing Amendment Effective Date by the Borrower Company or any of its Restricted Subsidiaries of (A) any Permitted Credit Agreement Refinancing Indebtedness the Company shall prepay an aggregate principal amount of Loans (and/or replace unused Revolving Credit Commitments) equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Company or such Restricted Subsidiary (such prepayments to be applied as set forth in clause (ix) below) or (B) any other Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 7.02 (except Credit Agreement Refinancing Indebtednessother than Section 7.02(s)), the Borrower Company shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations Term 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 Company or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses clause (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 1 contract
Sources: Credit Agreement (Aecom)
Mandatory. (i) Upon 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 Term Loans made during such fiscal year 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 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 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 Initial 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) during such fiscal year or issuance after year‑end and prior to when such Excess Cash Flow prepayment is due and (5) all AMERICAS 94626185 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) 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 First 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 First 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) 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) which constitutes a Repricing Event that is consummated in respect of all or any portion of the Initial Term Loans on or prior to the twelve month anniversary of the Closing Date, the Borrower shall pay to each Term Lender the fee required by Section 2.09(d). AMERICAS 94626185
(iv) 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 (including as a result of the termination of the Non-Extended Revolving Credit Commitments on the Maturity Date thereof), 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)(iv) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such aggregate Outstanding Amount of L/C Obligations exceeds the aggregate Revolving Credit Commitments then in effect. If for any reason, at any time during the five (5) Business Day period immediately preceding the Maturity Date for the Non-Extended Revolving Credit Commitments, (x) the Non-Extending Revolving Credit Lenders’ Allocable Revolving Share of the Revolving Credit Exposure attributable to L/C Obligations and Swing Line Obligations exceeds (y) the amount of the 2018 Extended Revolving Credit Commitments minus the 2018 Extending Revolving Credit Lenders’ Allocable Revolving Share of the total Revolving Credit Exposure at such prepayments time, then the Borrower shall promptly repay or cause to be promptly repaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount necessary to eliminate such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this sentence unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such excess has not been eliminated.
(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, including as a result of minority ownership (so long as such restrictions were not implemented for the purpose of avoiding such mandatory prepayment requirements), an amount equal to the portion of such Foreign Subsidiary Excess Cash Collateralization) 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 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) Holdings, Intermediate Holdings, the Borrower and (vii) below).
(ii) In its Restricted Subsidiaries hereby agree to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation, even if the event Borrower does not intend to actually repatriate such cash, so that (a) there shall be Consolidated an amount equal to the full amount of such Foreign Subsidiary Excess Cash Flow for 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 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 Yearaffected 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 shallthat 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, no later than one-hundred-twenty-five (125whether 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 shall be deemed allocable to each Foreign Subsidiary, with respect to any period, AMERICAS 94626185 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 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.
(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, including as a result of minority ownership (so long as such restrictions were not implemented for the purpose of avoiding such mandatory prepayment requirements), 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 (Holdings, Intermediate Holdings, the Borrower and its Restricted Subsidiaries hereby agree 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 due 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 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 adverse tax cost consequences (including the imposition of withholding Taxes) 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 in the case of any each of clauses (i) and (ii), such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, nonpayment shall not constitute an Event of Default (and in the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash amounts shall be available for working capital purposes of the Borrower and the Restricted Subsidiaries, subject to the 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 (and whether or not such amounts are used in or excluded from the proceeds determination of Indebtedness the amount of any mandatory prepayments hereunder).
(vii) Except as otherwise provided in any Refinancing Amendment, Extension Amendment or the sale any Incremental Amendment or issuance as otherwise provided herein, (A) each prepayment of Equity Interests or equity contributionsTerm Loans pursuant to this Section 2.05(b) and, in the case shall be applied ratably to each Class 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 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); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (vi), (ii) and (viiiii) below.of this Section 2.05(b) shall be applied to
Appears in 1 contract
Sources: First Lien Credit Agreement (Jason Industries, 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 seven Business Days after financial statements have been delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness6.01(a)), commencing with the delivery of financial statements for the fiscal year ending October 31, 2018, 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 the excess (if any) of (A) the ECF Percentage 50% of such Consolidated Excess Cash Flow (such percentage, the “ECF Percentage”) for the fiscal year covered by such Fiscal Year less financial statements over (B) all the amount of any voluntary prepayments made (i) on the Loans (in the case of Term Loanspayments pursuant to Section 2.03(a)(ii), loans under calculated as the amount of cash actually expended to make such payment) and (ii) on any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, Indebtedness secured by Liens on a pari passu basis with the Liens securing the Obligations hereunderLoans, in each casecase of clauses (i) and (ii), made during such Fiscal Year period or fiscal year or after the end of such Fiscal Year period or fiscal year and prior to the date when 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; and provided that, provided that to the extent any voluntary prepayments of Indebtedness as described in clauses (B)(i) and (ii) above made during the current period or fiscal year are applied to reduce the Excess Cash Flow payment for the prior period or fiscal year pursuant to the foregoing sentence, then such amount so deducted prepayments shall not be deducted from with respect to the Excess Cash Flow Amount prepayment for the current period or fiscal year; provided, further, that if the Total Secured Net Leverage Ratio for the fiscal year ended prior to such prepayment date (with the Total Secured Net Leverage Ratio recalculated to give effect to any voluntary prepayment described in clauses (B)(i) and (ii) above would have a material adverse tax consequence (taking into account any subsequent periodforeign tax credit or benefit actually realized in connection with such repatriation) (with respect to such amountNet Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, the “Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow Amount”) so affected will not be required to be applied to repay Loans at the times provided in Section 2.03(b)(i),(ii) or (iv), as set forth the case may be, and such amounts may be retained by the applicable Foreign Subsidiary; provided that the Borrower shall use commercially reasonable efforts under any local law to permit such repatriation and to mitigate any such adverse tax consequences, in clauses each case within the 450 day period described in the immediately succeeding clause, provided, further, that if within 450 days after the day on which the Borrower would otherwise be obligated to make a payment under Section 2.03(b)(i), (vii) or (iv) the Borrower reasonably determines that repatriation of any of or all the Net Sale Proceeds or Net Insurance Proceeds of any Foreign Prepayment Event or Excess Cash Flow (A) is no longer prohibited under local law or (B) would no longer have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow, such Net Sale Proceeds, Net Insurance Proceeds or Excess Cash Flow shall be promptly applied to the repayment of the Loans pursuant to Section 2.03(b)(i), (ii) or (iv), as applicable, but subject to any reinvestment rights provided therein and (vii) belowthe payment of any Other Applicable Indebtedness in accordance with Section 2.03(b)(v).
Appears in 1 contract
Sources: Credit Agreement (Ciena Corp)
Mandatory. (i) Upon If at any time the incurrence or issuance by aggregate principal amount of Outstanding Credits shall 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))Total Commitment, the Borrower shall forthwith prepay (or the outstanding Advances, and/or deposit funds in the Cash CollateralizeCollateral Account in respect of the amount available for drawing under the Letters of Credit outstanding at such time, an amount as applicable) an aggregate principal shall result in the amount of Pro Rata Obligations Outstanding Credits minus the amount of funds so held as collateral being less than or equal to 100.00% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any Total Commitment at 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)time.
(ii) In If, at any time, there exist any Outstanding Credits and (A) the event that “Available Commitments” under and as defined in the NU Revolver shall be increased to exceed $15,000,000 (athe amount of such excess being the “Excess Amount”), (B) the Excess Amount or the amount available to the Borrower for extensions of credit under any other existing lines of credit shall be increased (the amount by which the Excess Amount is increased being the “Incremental Excess Amount”) or (C) the Borrower shall issue any new indebtedness or there shall be Consolidated Excess made available to the Borrower any new line of credit, the Borrower shall forthwith prepay the outstanding Advances, and/or deposit funds in the Cash Flow Collateral Account in respect of the amount available for any Fiscal Year (commencing with drawing under the Fiscal Year ending December 31, 2022) and (b) there are any Term Loans Letters of Credit outstanding at such time, in an amount equal to the end Excess Amount, such Incremental Excess Amount or the amount of such Fiscal Yearnew indebtedness or line of credit, as applicable.
(iii) If, at any time, the Borrower shall optionally prepay any of its or Select Energy Inc.’s indebtedness (excluding, in the case of Select Energy Inc., indebtedness to NU or NU Enterprises, Inc. or incurred under the NU System Money Pool), the Borrower shall, no later than one-hundred-twenty-five (125) days after the end date of such Fiscal Yearprepayment, prepay all outstanding Advances and/or deposit funds in the Cash Collateral Account in an aggregate principal amount of the Term Loans equal to (A) the ECF Percentage maximum amount available for drawing under the Letters of Credit outstanding at 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) belowtime.
Appears in 1 contract
Mandatory. (i) Upon Within ten (10) Business Days after financial statements have been delivered pursuant to paragraphs (a) and (b) of Section 6.01, as applicable, and 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 related Compliance Certificate has been delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness))6.01(a) for each fiscal quarter of the Borrower commencing with the fiscal quarter ending on or after September 30, 2026, the Borrower shall offer to prepay in accordance with Section 2.05(b)(vi) and (or Cash Collateralizeix) below, as applicable) an aggregate principal amount of Pro Rata Obligations Term Loans in an amount equal to 100.00% the ECF Prepayment Percentage of Excess Cash Flow measured at the end of such fiscal quarter, if any; provided that, (I) all voluntary prepayments, redemption and repurchases of Term Loans (including permitted loan buy-backs, Dutch auctions, open market purchases and prepayments in connection with yank-a-bank provisions), in each case, in an amount equal to the aggregate principal amount prepaid, redeemed or repurchased, of the gross cash proceeds received loans under the Term Facility (including the Incremental Facilities), Incremental Equivalent Debt and Permitted Refinancing Indebtedness, and any other Indebtedness (and in the case of any revolving credit facilities, to the extent accompanied by a permanent reduction of the Borrower or any corresponding commitment) in each case, under this clause (I) made during such fiscal quarter (without duplication in the next fiscal quarter) or, at the Borrower’s election, after the end of its Restricted Subsidiaries from any such Indebtedness less all reasonable fiscal quarter and customary out-of-pocket legalprior to the time such Excess Cash Flow prepayment is due (in each case under this clause (I), underwriting and other fees, costs and expenses incurred or reasonably anticipated except 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 (vextent financed with indebtedness) and (viiII) all voluntary prepayments, repurchases and redemptions of Indebtedness secured by ▇▇▇▇▇ on Excluded Assets (including those made through debt buybacks and in the case of below-par repurchases in an amount equal to the discounted amount actually paid in cash in respect of such below-par repurchase) and all amortization payments with respect to such Indebtedness during such fiscal quarter or after quarter-end and prior to when such Excess Cash Flow prepayment is due, in each case of the immediately preceding clauses (I) and (II), without duplication of any deduction from Excess Cash Flow in the definition thereof or in any prior period and to the extent not funded with Indebtedness of the Borrower, will reduce the amount of Excess Cash Flow prepayments required for such fiscal quarter on a dollar-for-dollar basis; provided that Distributable ECF from any prior fiscal quarter shall not be subject to the mandatory prepayment contemplated by this clause (i) in any future fiscal quarter.
(ii) In If the event that Borrower receives Net Proceeds as described in clause (aa)(a) there of the definition thereof (other than Net Proceeds due to a Disposition of the Equity Interests in CP Pledgor) (to the extent such Disposition is not otherwise permitted under Section 7.05), then the Borrower shall offer to prepay (or cause to be Consolidated Excess Cash Flow for any Fiscal Year (commencing offered to be prepaid) in accordance with the Fiscal Year ending December 31, 2022Section 2.05(b)(vi) and (bix) there are any Term Loans outstanding at below, on or prior to the end date which is ten (10) Business Days after the date of the realization or receipt by the Borrower of such Fiscal YearNet Proceeds, 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 Cash Flow for Net Proceeds realized or received; provided that no such Fiscal Year payment shall be required pursuant to this Section 2.05(b)(ii) if such amount is equal to or less (B) all voluntary prepayments of Term Loansthan $25,000,000; provided, loans under further, that, notwithstanding the immediately preceding clause, if at the time that any Incremental Equivalent Debtsuch prepayment would be required pursuant to this Section 2.05(b)(ii), Revolving Credit Loans and/or loans under other Indebtednessthe Total Net Leverage Ratio, in each case, secured calculated on a pari passu basis with Pro Forma Basis, for the Liens securing most recently ended Test Period is no greater than 3.85 to 1.00, then no such prepayment shall be required;
(iii) If the Obligations hereunder, in each case, made during such Fiscal Year Borrower incurs or issues any Indebtedness after the end of such Fiscal Year and Closing Date (other than Indebtedness not prohibited under Section 7.03 (excluding Indebtedness incurred pursuant to Section 7.03(r), which shall be used to prepay or redeem the applicable Refinanced Debt), the Borrower shall cause to be offered to be prepaid, on or prior to the date which is five (5) Business Days after the receipt by the Borrower of such Consolidated Excess Cash Flow prepayment is due Net Proceeds, in accordance with Section 2.05(b)(vi) and (ix) below an aggregate principal amount of Term Loans 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 an amount of the Net Proceeds received by the Borrower.
(iv) If the Borrower (and not from receives Net Proceeds due to a Disposition of the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andin CP Pledgor, in the case of all such prepayments made after the end which, as a result of such Fiscal Year Disposition, CPH no longer owns, directly or indirectly, 100% of CP Pledgor, then the Borrower shall offer to prepay (or cause to be offered to be prepaid) in accordance with Section 2.05(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 of such Consolidated Excess Cash Flow prepayment is dueNet Proceeds, an aggregate principal amount of the Term Loans equal to 100% of such Net Proceeds realized or received; provided that no such amount so deducted prepayment shall be required pursuant to this Section 2.05(b)(iv) if the Total Net Leverage Ratio (calculated on a Pro Forma Basis) does not be deducted from exceed the Excess Cash Flow Amount in Total Net Leverage Ratio with respect to the most recently ended Test Period immediately prior to such Disposition.
(v) If at the time that any subsequent periodprepayment pursuant to clauses (i) through (such amountiv) of this Section 2.05(b) is required, the “Excess Borrower is required to prepay or repurchase (or offer to prepay or repurchase) any Other Applicable Indebtedness with cash or Cash Flow Amount”) Equivalents required to be applied towards any prepayment as set forth in clauses (vi) through (iv) of this Section 2.05(b), then the Borrower may apply such cash and Cash Equivalents 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) and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to clauses (i) through (iv) of this Section 2.05(b) shall be reduced accordingly; provided that (A) the portion of such cash and Cash Equivalents allocated to the Other Applicable Indebtedness shall not exceed the amount of such cash and Cash Equivalents required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof 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.
(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 as between series, Classes or tranches of Term Loans as directed by the Borrower (provided that any prepayment of Term Loans with the Net Proceeds of Permitted Refinancing Indebtedness 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 (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 Borrower without premium or penalty (and in the absence of such direction, 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.
(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 (iv) of this Section 2.05(b) at least three (3) 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 1 contract
Mandatory. (i) Upon 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 incurrence 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) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for such Excess Cash Flow Period, minus (B) at the option of the Borrower, the aggregate amount (other than any amount applied to reduce the prepayment required under this clause (b) in respect of any prior year) and except to the extent such prepayment, repurchase, prepayment, expenditure or issuance Restricted Payment is funded with the proceeds of long-term Indebtedness (other than revolving loans) of the sum of (1) the aggregate amount of all voluntary prepayments and repurchases (including prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment) made by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted or committed to be incurred or issued pursuant to Section 7.03 made) of (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or Cash Collateralize, as applicablet) 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 SubsidiarySecond Lien Term Loans, (such prepayments (u) Initial Term Loans or Cash Collateralization) to be applied as set forth in clauses 2022 Incremental Term Loans, (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 New Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other (w) Refinanced First Lien Indebtedness, (x) the “Loans” as defined in each casethe ABL Credit Agreement as in effect on the Closing Date, (y) other Indebtedness that is secured by the Collateral on a first lien pari passu basis with Liens securing the Obligations or on a pari passu or senior basis with the Liens securing the Obligations hereunderSecond Lien Term Facility and (z) any refinancing, replacement or extension of any of the foregoing (in each case, made during such Fiscal Year case of prepayments of a revolving facility or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (“Loans” as defined in the case of any such Revolving ABL Credit Loans or other revolving Indebtedness prepaidAgreement as in effect on the Closing Date, to the extent accompanied by a corresponding permanent reduction commitment reduction), (2) [reserved], (3) the aggregate amount of all capital expenditures and Investments made (or committed to be made subject to reversal of such deduction if any such committed amount is not actually expended within a twelve-month period after commitment thereof) in cash, and (4) Restricted Payments (other than non-cash Restricted Payments and Restricted Payments made pursuant to clause (3) of the second paragraph under Section 7.05), in each case, made (or committed to be made) during the period commencing on the first day of the relevant commitment, Excess Cash Flow Period and in ending on the case of all such prepayments, to the extent that such prepayments are financed with internally generated cash last day of the Borrower (and not from relevant Excess Cash Flow Period, or, at the proceeds option of Indebtedness or the sale or issuance of Equity Interests or equity contributions) andBorrower, in the case of all such prepayments made after the end of such Fiscal Year and prior to on the date such Consolidated on which the relevant Excess Cash Flow prepayment is duerequired to be made (such amounts in clauses (1) through (4), “ECF Deductions”) and such ECF Deductions may be applied to reduce payments under this Section 2.05(b)(i) in respect of subsequent Excess Cash Flow Periods to the extent the amount of such ECF Deductions exceeds the amount of payments required under this Section 2.05(b)(i) in respect of the current Excess Cash Flow Period; provided that such amount so deducted shall not be deducted from the percentage in respect of any Excess Cash Flow Amount 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 (but giving Pro Forma Effect to any payment under this Section 2.05 made after the last day of the year to which such Excess Cash Flow Period relates but prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made) was equal to or less than 4.00 to 1.00 or 3.50 to 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 (the “ECF Threshold”) the greater of $21,000,000 and 10.0% of Consolidated EBITDA of the Group Parties (and only amounts in excess of the ECF Threshold shall be applied to the payment thereof). Notwithstanding anything to the contrary in the foregoing, the Borrower may elect to use a portion of such amount of payments otherwise required under this Section 2.05(b)(i) in respect of any such Excess Cash Flow Period to prepay or repurchase any other Indebtedness that is secured by the Collateral, in each case in an amount not to exceed the product of (1) the amount of payments otherwise required under this Section 2.05(b)(i) in respect of such Excess Cash Flow Period 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).
(ii) If any Asset Sale of Collateral pursuant to the General Asset Sale Basket or Casualty Event (or series of such related Asset Sales or Casualty Events) (other than with respect to ABL Priority Collateral) results in the receipt by the Loan Parties of aggregate Net Cash Proceeds in excess of the greater of (x) $25,000,000 and (y) 12.0% of Consolidated EBITDA of the Group Parties (whether in a single transaction or a series of related transactions) (the “Per Transaction Prepayment Trigger”) and in excess of the greater of (x) $52,000,000 and (y) 25.0% of Consolidated EBITDA of the Group Parties in any subsequent period) fiscal year (such amountthe “Per Fiscal Year Prepayment Trigger” and, together with the Per Transaction Prepayment Trigger, collectively, the “Excess Cash Flow AmountAsset Sale and Casualty Event Prepayment Trigger”) (a “Relevant Transaction”) then, except to the extent the Borrower reinvests 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% (such percentage, as it may be applied reduced as described below, the “Net Cash Proceeds Percentage”) of the Net Cash Proceeds received from such Relevant Transaction in excess of the Prepayment Trigger within 15 Business Days of receipt thereof (or within 15 Business Days after the later of the date the Prepayment Trigger referred to above is first exceeded, the date the relevant Net Cash Proceeds are received or the last day of the applicable reinvestment period in accordance with Section 7.04) by the relevant Loan Party (provided that only the amount of Net Cash Proceeds in excess of the Prepayment Trigger, after giving effect to any reinvestment of such Net Cash Proceeds pursuant to the reinvestment right set forth in clauses (v) and (vii) below.Section 7.04, shall be subject to prepayment pursuant to this Section 2.05(b)(ii)); provided that
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 to be incurred or issued 5) Business Days after financial statements have been delivered pursuant to Section 7.03 (except Credit Agreement Refinancing Indebtedness)6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay (or Cash Collateralize, as applicable) cause to be prepaid Term Loans in an aggregate principal amount of Pro Rata Obligations equal to 100.00(A) 50% of Excess Cash Flow, if any, for the gross cash proceeds received fiscal year covered by such financial statements (commencing with the fiscal year ending December 31, 2013) minus (B) the sum of (without duplication) (1) all voluntary prepayments of Term Loans (excluding prepayments pursuant to Section 2.06(a)(iv)) during such fiscal year (excluding any voluntary prepayments of Term Loans made during such fiscal year that reduced the amount required to be prepaid pursuant to this Section 2.06(b)(i) in the prior 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 during such fiscal year (excluding any voluntary prepayments of Revolving Credit Loans made during such fiscal year that reduced the amount required to be prepaid pursuant to this Section 2.06(b)(i) in the prior 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, but 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 (x) the percentage of Excess Cash Flow specified in clause (A) above shall instead be 25% if the Consolidated First Lien Net Leverage Ratio as of the last day of the fiscal year covered by such financial statements was less than or equal to 3.75 to 1.00 but greater than 3.25 to 1.00 and (y) no payment of any Term Loans shall be required under this Section 2.06(b)(i) if the Consolidated First Lien Net Leverage Ratio as of the last day of the fiscal year covered by such financial statements was less than or equal to 3.25 to 1.00.
(ii) (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 ▇▇▇▇▇▇▇ ▇.▇▇(▇), underwriting and other fees(▇), costs and expenses incurred (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (q) or reasonably anticipated to be incurred within ninety (90r)) days thereof or (y) any Casualty Event occurs, which in connection therewith, within one (1) Business Day following the aggregate results in the realization or 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 cause to be prepaid 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 Term Loans in an aggregate principal amount of the Term Loans equal to (A) 100% of all Net Cash Proceeds received; provided that, if at the ECF Percentage of time that any such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loansprepayment would be required, loans under any the Borrower is required to offer to repurchase or prepay Permitted Pari Passu Secured Refinancing Debt or Incremental Equivalent Debt, Revolving Credit Loans and/or loans under Debt or other Indebtedness, in each case, Indebtedness permitted by Section 7.03 that is secured on a pari passu basis with the Liens securing the Obligations hereunder(or, in each case, made during any Indebtedness pursuant to a Permitted Refinancing in respect thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Fiscal Year Indebtedness with such Net Cash Proceeds (such Permitted Pari Passu Secured Refinancing Debt or after Incremental Equivalent Debt or other Indebtedness permitted by Section 7.03 that is secured on a pari passu basis with the end Obligations (or, in each case, any Indebtedness pursuant to a Permitted Refinancing in respect thereof) required to be offered to be so repurchased or prepaid, “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 Other Applicable Indebtedness at such time; provided, further that the portion of such Fiscal Year and prior 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 repurchase or prepayment 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 2.06(b)(ii)(A) 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 repurchased 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 such prepayment shall be required pursuant to this Section 2.06(b)(ii) 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 that such prepayments are financed Administrative Agent of its intent to reinvest in accordance 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.Section 2.06(b)(ii)(B);
Appears in 1 contract
Sources: Credit Agreement (Bright Horizons Family Solutions Inc.)
Mandatory. (i) Promptly upon receipt by Holdings or any of its Subsidiaries of the Net Cash Proceeds received from the Disposition of any assets or from any Recovery Event, in each case, other than Excluded Assets and Reinvestment Assets, an amount equal to 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the Loans (such prepayment to be applied as set forth below); Notwithstanding the foregoing, if any prepayment required under this Section 2.03(b)(i) would require the Borrower to prepay Loans on a day other than the last day of an Interest Period and such prepayment would require the Borrower to compensate the Lenders under Section 3.05 by reason of such prepayment, then the Borrower may delay making the prepayment until the last day of the applicable Interest Period.
(ii) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a), commencing with the 2011 Fiscal Year, and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shall prepay an aggregate principal amount of Loans in an amount equal to (A) the ECF Percentage of Excess Cash Flow for the fiscal year covered by such financial statements (or, in the case of the first such prepayment, for the period commencing on the Closing Date and ending on the last day of the 2011 Fiscal Year) (such prepayment to be applied as set forth below) minus (B) the aggregate amount of optional prepayment of Loans during such fiscal year (to the extent such prepayments are not funded with the proceeds of Indebtedness and to the extent such prepayments are not included in the calculation of Excess Cash Flow).
(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 (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 Holdings or such Restricted Subsidiary, Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(iiiv) In the event that (aEach prepayment of Loans pursuant to Section 2.03(b)(i), Section 2.03(b)(ii), Section 2.03(b)(iii) there or Section 7.03(v) shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with applied to reduce the Fiscal Year ending December 31, 2022) then remaining installments of the U.S. Tranche Loans and (b) there are any the Canadian Tranche Term Loans outstanding at pro rata based upon the end of such Fiscal Year, respective then remaining principal amounts thereof and shall reduce the Borrower shall, no later than one-hundred-twenty-five (125) days after the end of such Fiscal Year, prepay an aggregate principal amount then remaining installments of the Term Loans equal of each Lender ratably in accordance with its Applicable Percentage. Each prepayment shall be made, first, to (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Base Rate Loans or Canadian Prime Rate Loans, loans under any Incremental Equivalent Debtas applicable, Revolving Credit and, second, to Eurodollar Rate Loans and/or loans under other Indebtednessor CDOR Rate Loans, in each caseas applicable. Amounts prepaid may not be reborrowed.
(v) Notwithstanding the above, 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 first anniversary of the Closing Date, the Majority Facility Lenders in respect of the applicable Facility may decline to accept any prepayment to be made by the Borrower pursuant to any event described in Section 2.03(b) occurring during such Consolidated Excess Cash Flow prepayment is due (period, in which case the case Borrower shall not prepay the Loans under such Facility as a result of such events and shall retain any such Revolving Credit Loans or other revolving Indebtedness prepaid, to the extent accompanied amounts (and such amounts may be used 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 for any purpose 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) belowprohibited hereunder).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Postmedia Network Canada Corp.)
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(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) 75% (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 other 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 in respect of Dutch Auctions and Permitted Loan Purchases, with credit given for the principal amount retired and prepayments in connection with 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 (other than Revolving Credit Loans); provided, that, (x) the Consolidated First Lien Net Leverage Ratio shall be recalculated giving pro forma effect to any payments made after the end of the applicable Excess Cash Flow Period but prior to the making of the applicable prepayment in respect of such Excess Cash Flow Period (an “After Year End Payment”) as if such payment were made on the last day of the applicable Excess Cash Flow Period and the ECF Prepayment Amount for purposes of making such Excess Cash Flow prepayment shall be determined by reference to such recalculated Consolidated First Lien Net Leverage Ratio and (y) such After Year End Payment shall not reduce the required amount of any subsequent Excess Cash Flow payment in another Excess Cash Flow Period,
(2) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii) or (ix), and
(3) the portion of the Excess Cash Flow applied (to the extent any Borrower Party 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), and, to the extent required hereunder, solely to the extent that the Term Lenders are offered a ratable share of such Excess Cash Flow, and 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 (other than Revolving Credit Loans), provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 50%, 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 4.10 to 1.00, 3.60 to 1.00 or 3.10 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 the greater of (x) $10,000,000 and (y) 10% 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 50%, 25% or 0%, then such reduced percentage applicable to the Excess Cash Flow prepayment required to be made shall apply.
(ii) If any Prepayment Transaction (or series of related Prepayment Transactions) results in the receipt by any Borrower Party of aggregate Net Cash Proceeds in excess of $5,000,000 per year (in each case, a “Relevant Transaction”) (with only the amount in excess of such per transaction and annual thresholds required to be applied to such prepayment and with any unused amounts to be carried forward to the next succeeding fiscal year), 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) and (ix), an aggregate principal amount of Term Loans in an amount equal to 100% (as may be adjusted pursuant to the second and third provisos below) of the Net Cash Proceeds received from such Relevant Transaction in excess of the aforementioned thresholds within fifteen (15) Business Days of receipt thereof (or within fifteen (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 Parties; 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), to the extent that the Term Lenders are offered a ratable share of such Net Cash Proceeds; provided further that only the amount of Net Cash Proceeds in excess of $5,000,000 per year shall be subject to prepayment pursuant to this Section 2.05(b)(ii) (with any unused amounts to be carried forward to the next succeeding fiscal year) and, in such case, the required prepayment shall be only the amount in excess thereof.
(iii) Upon the incurrence or issuance by the any Borrower Party of any Refinancing Notes, any Specified Refinancing Term Loans or any of its Restricted Subsidiaries 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 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 Party.
(Aiv) Upon the ECF Percentage incurrence by any Borrower Party of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments any Specified Refinancing Debt constituting revolving credit facilities, the Borrower shall prepay an aggregate principal amount 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 such Borrower Party.
(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, the aggregate amount of any prepayment of Term Loans that is required pursuant to this Section 2.05(b) shall be made to each Term Loan Tranche on a pro rata basis (other Indebtednessthan 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 particular Tranche of a Facility pursuant to this Section 2.05(b) shall be applied on a pro rata basis to the then outstanding ABR Loans and Term SOFR Loans under such Tranche; provided that, if there are no Declining Lenders with respect to such prepayment, then the amount thereof shall be applied first to ABR Loans under such Tranche to the full extent thereof before application to Term 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.
(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 Term SOFR Loan on a date other revolving Indebtedness prepaidthan the last day of an Interest Period therefor, any amounts owing in respect of such Term 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 Term 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).
(viii) [reserved].
(ix) Notwithstanding any other provisions of all such prepaymentsthis Section 2.05, to the extent that such prepayments are financed with internally generated cash the Borrower has determined in good faith that repatriation of any or all of the Borrower (and not from the proceeds Net Cash Proceeds of Indebtedness any Foreign Disposition or the sale or issuance of Equity Interests or equity contributions) andany 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 is dueevent pursuant to Section 2.05(b)(i), would result in adverse tax consequences, the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided that such amount so deducted in this Section 2.05 but may be retained by the applicable Subsidiary.
(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.
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Mandatory. (i) Upon Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing with the incurrence or issuance fiscal year ended January 31, 2020) 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 all voluntary prepayments of Term Loans, Incremental Equivalent Debt and Refinancing Equivalent Debt (in each case that is secured by the Borrower Collateral on a pari passu basis, and pari passu in right of payment, with the Obligations under Term Loans), during such Excess Cash Flow Period or, without duplication across Excess Cash Flow Periods, 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)) and (2) all voluntary prepayments of Revolving Loans during such Excess Cash Flow Period or, without duplication across Excess Cash Flow Periods, after the end of such Excess Cash Flow Period and prior to when such Excess Cash Flow prepayment is due, to the extent the “Commitments” (as defined under the Revolving Credit Agreement) are permanently reduced by the amount of such payments and, in the case of each of the immediately preceding clauses (1) and (2), to the extent such prepayments are funded with Internally Generated Cash (the difference of (A) minus (B), the “ECF Prepayment Amount”); provided, however, that if at the time that any such prepayment would be required, Holdings (or any Restricted Subsidiary of its Holdings) 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 any Class of Term 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 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 applicable Class of Term 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, if any, of such ECF Prepayment Amount shall be allocated to the applicable Class of 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; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchase 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 applicable Class of Term Loans in accordance with the terms hereof; provided, further, that no prepayment of Term Loans pursuant to this Section 2.05(b)(i) shall be required with respect to any Excess Cash Flow Period unless and to the extent that the ECF Prepayment Amount is at least $25,000,000 for such period.
(A) If Holdings or any Restricted Subsidiaries Subsidiary Disposes of any Indebtedness 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), (q), (s), (u), (v) or (w)) or (Y) so long as the Revolving Credit Agreement is in effect, any Disposition of Revolving Priority Collateral) which results in the realization or receipt by Holdings or such Restricted Subsidiary of Net Proceeds, the Borrower shall make an offer (each such offer, an “Asset Sale Offer”) (I) to Lenders to prepay their Loans in accordance with their respective Pro Rata Share of each Class of Term Loans or (II) to purchase, prepay or permanently reduce Other Applicable Indebtedness expressly (provided that the Borrower may only exercise its option to reduce obligations under any Other Applicable Indebtedness if, concurrently therewith, the Borrower exercises its option to, equally and ratably, reduce the amount of Indebtedness outstanding under this Agreement by (X) prepaying Loans in accordance with clause (a) of this Section 2.05 or (Y) making an offer (in accordance with the procedures set forth in clause (B) below) to all Classes of Lenders to prepay the relevant portion of their Loans at 100% of the principal amount thereof, plus accrued and unpaid interest to the date of such prepayment on the principal amount of Loans to be prepaid, in accordance with each such Lender’s Pro Rata Share), in an aggregate principal amount of Loans equal to 100% of all such Net Proceeds realized or received; provided that such percentage shall be reduced to (A) 50% if the Secured Net Leverage Ratio is equal to or less than 3.25 to 1.00, and (B) 0% if the Secured Net Leverage Ratio is equal to or less than 2.75 to 1.00; provided, further, that at the time that any such offer to prepay would be required, Holdings (or any Restricted Subsidiary) shall permanently retire such Indebtedness and, in the case of obligations under revolving credit facilities or other similar Indebtedness, shall correspondingly permanently reduce commitments with respect thereto.
(B) Upon the commencement of an Asset Sale Offer, the Borrower shall send a written notice to the Administrative Agent, which notice shall govern the terms of the Asset Sale Offer. The notice shall contain all instructions and materials necessary to enable each Lender to accept the Asset Sale Offer. Any Asset Sale Offer shall be made on a pro rata basis to all applicable Classes of Lenders (based on the then outstanding principal amounts of the respective Classes of the Loans) in accordance with the Pro Rata Shares of the Lenders. Such notice shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 2.05(b)(ii) and that all Loans of Lenders properly accepting such offer (and not withdrawn) shall be prepaid;
(b) the date on which Loans of Lenders properly accepting such offer (and not withdrawn) shall be prepaid, which date shall be at least 30 days and no later than 60 days from the date such notice is delivered to the Administrative Agent (the “Asset Sale Payment Date”);
(c) that any Loan as to which such offer is not properly accepted shall continue to accrue interest;
(d) that, unless the Borrower defaults in making payment therefor, any Loan accepted for prepayment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Payment Date;
(e) that any Lender electing to accept an Asset Sale Offer shall be required to notify the Administrative Agent at least three (3) Business Days before the Asset Sale Payment Date;
(f) that Lenders shall be entitled to withdraw their election to accept an Asset Sale Offer if the Administrative Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Payment Date, a written notice setting forth the name of the Lender, the aggregate principal amount of its Loans to be prepaid and a statement that such Lender is withdrawing its election to have such Loans prepaid;
(g) that, if the aggregate principal amount of Loans as to which the Asset Sale Offer is properly accepted (and not withdrawn) exceeds the Net Proceeds allocable to the Loans as part of such Asset Sale Offer, the Administrative Agent shall select the Loans to be prepaid on a pro rata basis; and
(h) that Lenders whose Loans are prepaid only in part shall be issued a new Note, if requested by such Lender, in an aggregate principal amount equal to the unpurchased portion of the Loans not prepaid.
(C) On the Asset Sale Payment Date, the Borrower shall, to the extent lawful: (i) prepay all Loans as to which the Asset Sale Offer was properly accepted and not withdrawn; (ii) deposit with the Administrative Agent an amount equal to the aggregate payment in respect of all Loans subject to such Asset Sale Offer and as to which the Asset Sale Offer was properly accepted and not withdrawn; and (iii) deliver or cause to be delivered to the Administrative Agent an certificate of a Responsible Officer stating the aggregate principal amount of Loans being prepaid by the Borrower.
(D) The Administrative Agent shall promptly wire to each Lender that has properly accepted the Asset Sale Offer the applicable payment for such Loans, and the Borrower shall promptly deliver, to the extent requested by such Lender, a new Note equal in principal amount to the portion of the Loans of such Lender not prepaid, if any. If at the time of any prepayment pursuant to this Section 2.05(b)(ii) there shall be outstanding Borrowings of different Types or with different Interest Periods, and if some but not all Lenders shall have accepted such Asset Sale Offer, then the aggregate amount of such prepayment shall be allocated ratably to each outstanding Borrowing that comprises the Loans of the accepting Lenders.
(E) All prepayments of Loans under this Section 2.05(b)(ii) shall be subject to Section 3.05.
(iii) Subject to Section 2.05(a)(vi), if Holdings or any Restricted Subsidiary incurs or issues any Indebtedness 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 Holdings 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 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 of such Net Proceeds.
(A) If a Change of Control occurs, the Borrower shall be required to make an offer to prepay (such offer, a “Change of Control Offer”), on a Business Day (the “Change of Control Payment Date”) not more than 60 days following the date of the notice referred to below, on a pro rata basis to each Class of Loans (based on the then outstanding principal amounts of the respective Classes of Loans) in accordance with the Pro Rata Obligations Shares of the Lenders, all of such Lender’s outstanding Loans for a cash payment (the “Change of Control Payment”) equal to 100.00100% of the gross cash proceeds received by aggregate principal amount of such Loans prepaid, plus accrued and unpaid interest thereon, to the Borrower or any Change 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)Control Payment Date.
(iiB) In Within 60 days following the event date upon which a Change of Control occurs (the “Change of Control Date”), the Borrower shall send a written notice to the Administrative Agent, which notice shall govern the terms of the Change of Control Offer. The notice shall describe the transaction or transactions that constitute the Change of Control and offer to prepay all or any part of that Lender’s Loans pursuant to a Change of Control Offer on the Change of Control Payment Date specified in the notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is delivered to the Administrative Agent, pursuant to the procedures described in such notice. Such notice shall state:
(a) there that the Change of Control Offer is being made pursuant to this Section 2.05(b)(v) and that all Loans of Lenders properly accepting such offer (and not withdrawn) shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2022) and prepaid;
(b) there are the Change of Control Payment (including the amount of accrued interest) and the Change of Control Payment Date;
(c) that any Term Loan as to which such offer is not properly accepted shall continue to accrue interest;
(d) that, unless the Borrower defaults in making payment therefor, any Loan accepted for prepayment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(e) that any Lender electing to have its Loans outstanding prepaid pursuant to the Change of Control Offer shall be required to notify the Administrative Agent at least three (3) Business Days before to the end Change of Control Payment Date;
(f) that Lenders shall be entitled to withdraw their election to accept the Change of Control Offer, if the Administrative Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a written notice setting forth the name of the Lender, the aggregate principal amount of such Fiscal YearLoans to be prepaid and a statement that such Lender is withdrawing its election to have its Loans prepaid;
(g) that Lenders whose Loans are prepaid only in part shall be issued a new Note, if requested by such Lender, in an aggregate principal amount equal to the portion of its Loans not prepaid; and
(h) the circumstances and relevant facts regarding such Change of Control.
(C) On the Change of Control Payment Date, the Borrower shall, no later than one-hundred-twenty-five to the extent lawful:
(125a) days after prepay all Loans as to which the end Change of such Fiscal Year, prepay Control Offer was properly accepted and not withdrawn;
(b) deposit with the Administrative Agent an amount equal to the Change of Control Payment in respect of all Loans as to which the Change of Control Offer was properly accepted and not withdrawn; and
(c) deliver or cause to be delivered to the Administrative Agent a certificate of a Responsible Officer stating the aggregate principal amount of Loans being prepaid by the Term Loans equal Borrower.
(D) The Administrative Agent shall promptly wire to (A) each Lender that has properly accepted the ECF Percentage Change of such Consolidated Excess Cash Flow Control Offer the Change of Control Payment 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 and 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 prepaidBorrower shall promptly deliver, to the extent accompanied requested by such Lender, a permanent reduction new Note equal in principal amount to the relevant commitmentportion of the Loans of such Lender not prepaid, if any. If at the time of any prepayment pursuant to this Section 2.05(b)(v) there shall be outstanding Borrowings of different Types or with different Interest Periods, and in if some but not all Lenders shall have accepted such Change of Control Offer, then the case aggregate amount of all such prepayments, prepayment shall be allocated ratably to each outstanding Borrowing that comprises the Loans of the accepting Lenders. All prepayments of Loans under this Section 2.05(b)(v) shall be subject to Section 3.05.
(E) Any amounts remaining after the prepayment of Loans pursuant to a Change of Control Offer shall be returned by the Administrative Agent 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 treated as having been applied to the Excess Cash Flow Amount prepayment of any Loan.
(F) The Borrower shall not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in any subsequent period) (such amountthe manner, at the “Excess Cash Flow Amount”) to be applied as times and otherwise in compliance with the requirements set forth in clauses this Agreement applicable to a Change of Control Offer made by the Borrower and prepays all Loans as to which such Change of Control Offer was properly accepted and not withdrawn or (v2) and (vii) below.a notice of prepayment with respect to all then outstanding Loans has been given pursuant to Section 2.05(a). A Change of Control Offer may be made by the Borrower or a third party in advance of a Change of Control or conditional upon the occurrence of a Change of Control, if a definitive agreement is in place for the Change of Control at the ti
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