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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below. (ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii). (iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below). (iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv). (v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit. (vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess. (vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a6.02(b), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage excess (if any) of (A) 50% of Consolidated Excess Cash Flow for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements minus (B) the aggregate principal amount of all Term Loans prepaid pursuant to Section 2.05(a)(i) and Revolving Credit Loans prepaid pursuant to Section 2.05(a)(i) (provided to the extent that any such payment of the Revolving Credit Loans was repayment is accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (vvi) and (viiviii) below; provided that (1) such percentage shall be reduced to zero during such times as the Consolidated Leverage Ratio of the Borrower and its Subsidiaries is less than 3.00 to 1.00, as evidenced by the most recently delivered Compliance Certificate and (2) any such prepayment shall be pro rated for the fiscal year ending July 31, 2010 to reflect that portion of such fiscal year that occurred during the term of this Agreement.
(ii) If any Loan Party the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(aSection 7.05 (except pursuant to Section 7.05(h), 7.05(b) or 7.05(csolely to the extent required therein)) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of an aggregate amount of $5,000,000 per fiscal year, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds in excess of such $5,000,000 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (vvi) and (viiviii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon the sale or issuance by the Borrower or any Debt Issuanceof its Subsidiaries of any of its Equity Interests (other than the Excluded Issuances and any sales or issuances of Equity Interests to another Loan Party), 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 such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viiviii) below).
(iv) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03), 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 (such prepayments to be applied as set forth in clauses (vi) and (viii) below).
(v) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viiviii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(vvi) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, ratably to the Term Loan Facility (or if such prepayment occurs prior to the Initial Funding Date, the Term Loan Commitment shall be reduced by an amount equal to such required prepayment) and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, to the Revolving Credit Facility in the manner set forth in clause (viiviii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vivii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiviii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), (iv) or (ivv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for use in the ordinary course of its business. 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 2 contracts
Sources: Credit Agreement (Diamond Foods Inc), Credit Agreement (Diamond Foods Inc)
Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, 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 of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in ▇▇▇▇:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, 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 or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within five (5) ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall prepay cause the Subject Loans to be prepaid in an aggregate principal amount of Loans equal to (the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment“ECF Prepayment Amount”), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (System1, Inc.), Credit and Guaranty Agreement (System1, Inc.)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), If the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(cSection 7.05(g)) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall shall, subject to the prior application of such Net Cash Proceeds pursuant to the provisions of the Senior Credit Facility regarding the application of such Net Cash Proceeds, prepay an aggregate principal amount of Loans 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 (vii) below)Person; provided, however, provided that, with respect to the proceeds of any Disposition permitted by Section 7.05(g) shall not constitute Net Cash Proceeds realized under a Disposition described to the extent that (A) such proceeds are reinvested in this Section 2.05(b)(ii)replacement properties or assets, at the election of the Borrower (pursuant to a notice in writing or other productive properties or assets, acquired by the Borrower to or a Subsidiary of a kind then used or usable in the Administrative Agent on or prior to business of the applicable Person within 180 days from the date of receipt thereof or (B) if the applicable Borrower or Subsidiary intends to acquire replacement properties or assets, or other productive properties or assets, with such Disposition)proceeds as part of a like-kind exchange under Section 1031 of the Code, and so long as no Default shall have occurred and be continuing, the potential replacement properties or assets are identified by such Loan Party Borrower or such Subsidiary may reinvest all or any portion within 180 days from the date the ownership to the sold assets is transferred to the buyer of such property and the proceeds from such property are reinvested to acquire such replacement properties or assets within 180 days from the date the ownership to the sold assets is transferred to the buyer of such property; provided further that, the proceeds of any Casualty Event shall not constitute Net Cash Proceeds to the extent that such proceeds are reinvested in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (replacement properties or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)assets, such purchase shall have been consummated (as certified or other productive properties or assets, acquired by the Borrower or a Guarantor of a kind then used or usable in writing the business of the applicable Person within 180 days from the date of receipt thereof.; and
(ii) Upon the incurrence or issuance subsequent to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, Closing Date by 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause Subsidiaries of any Indebtedness (iiother than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (b)-(k), (iii) or the issuance subsequent to the Closing Date by the Borrower or any of its Subsidiaries (ivor by any direct or indirect parent holding company of which the Borrower is a wholly-owned Subsidiary) of this Section 2.05(bany Equity Interests (other than any such issuance to the Borrower or 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablesuch Subsidiary.
Appears in 2 contracts
Sources: Bridge Loan Agreement (Sandridge Energy Inc), Bridge Loan Agreement (Sandridge Energy Inc)
Mandatory. If, prior to the Conversion Date:
(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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of shall (1) incur any property (other than Indebtedness, Disqualified Stock or Preferred Stock which serves to refund or refinance any Disposition of any property Indebtedness, Disqualified Stock or Preferred Stock incurred as permitted by Sections 7.05(aunder Section 6.03(1)(w), 7.05(b(1)(x), (2), (13) or 7.05(c(14) (as it relates to Section 6.03(2) and (14) only) or any Indebtedness, Disqualified Stock or Preferred Stock issued to so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock, including additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums (including reasonable tender premiums), defeasance costs and fees in connection therewith or (2) which results in the realization by such Person of Net Cash Proceedsissue any debt securities (including any Securities issued pursuant to a Securities Demand), the Borrower shall prepay then an aggregate principal amount of Loans equal to 100% of such the Net Cash Proceeds immediately upon thereof shall be applied promptly (but in no event later than three Business Days) after the receipt thereof toward the prepayment of the Initial Loans;
(ii) the Borrower, Holdings or any of the Borrower’s Restricted Subsidiaries shall issue any public equity securities (other than (1) to the Equity Investors, (2) in connection with an acquisition permitted by such Person the terms of this Agreement and (such prepayments 3) to employees pursuant to employee benefit plans in effect on the Closing Date), then an amount equal to 100% of the Net Proceeds thereof shall be applied as promptly (but in no event later than ten Business Days) after the receipt thereof toward the prepayment of the Initial Loans; or
(iii) the Borrower or any of its Restricted Subsidiaries shall receive Net Proceeds in respect of any Prepayment Asset Sale or Property Loss Event, then an amount equal to 100% of the Net Proceeds thereof, (subject to the restrictions set forth herein) shall be applied promptly (but not in clauses (vno event later than ten Business Days) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at after the election receipt thereof toward the prepayment of the Borrower Initial Loans; provided that if (pursuant to a notice in writing by the Borrower to the Administrative Agent on or A) prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intent to reinvest such Disposition), Net Proceeds in assets of a kind then used or usable in the business of the Borrower and so long as its Restricted Subsidiaries (including any Related Business Assets) and (B) no Event of Default shall have occurred and be continuingcontinuing at the time of such proposed reinvestment, and no Event of Default under clause (a) or (f) of Section 7.01 (each, a “Specified Default”) shall have occurred and shall be continuing at the time of proposed reinvestment (unless, in the case of such Specified Default, such Loan Party or such Subsidiary may reinvest all or any portion reinvestment is made pursuant to a binding commitment entered into at a time when no Specified Default was continuing), then the Borrower shall not be required to prepay Initial Loans hereunder in respect of such Net Cash Proceeds in operating assets to the extent that such Net Proceeds are so long as reinvested within 365 days after the date of receipt of such Net Cash Proceeds (or or, within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuanceday period, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its SubsidiariesRestricted Subsidiaries enters into a binding commitment to so reinvest in such Net Proceeds, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all such Net Cash Proceeds received therefrom immediately upon receipt thereof by are so reinvested within 180 days after such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) belowbinding commitment is so entered into); provided, however, that with respect to if any proceeds of insurance, condemnation awards (Net Proceeds are not reinvested or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to applied as a notice in writing by the Borrower to the Administrative Agent repayment on or prior to the date last day of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuingthe applicable application period, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied Net Proceeds shall be immediately applied within five Business Days to the prepayment of the Initial Loans as set forth in this Section 2.05(b)(iv).
above (v) Each prepayment of Loans pursuant without regard to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loansimmediately preceding proviso), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.or
Appears in 2 contracts
Sources: Senior Bridge Loan Agreement (CDW Finance Corp), Senior Subordinated Bridge Loan Agreement (CDW Finance Corp)
Mandatory. (i) Within five (5A) Business Days after financial statements have been delivered pursuant to Section 6.01(aIf (1) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a)any Prepayment Asset Sale occurs or (2) any Casualty Event occurs, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less which in the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization or receipt by such Person any Restricted Company of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments cause to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such DispositionNet Cash Proceeds an aggregate principal amount of Initial Term Loans and 2022 Incremental Term B-2 Loans on a pro rata basis in an amount equal to the Asset Sale Percentage of all Net Cash Proceeds received (the “Applicable Asset Sale Proceeds”); provided that (x) no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, and so long as no Default on or prior to such date, the Borrower shall have occurred and be continuing, such Loan Party or such Subsidiary may given written notice to the Administrative Agent of its intention to reinvest all or any a portion of such Net Cash Proceeds in operating assets accordance with Section 2.06(b)(i)(B) (which election may only be made if no Specified Event of Default has occurred and is then continuing) and (y) 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 Initial Term Loans and the 2022 Incremental Term B-2 Loans pursuant to the terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered to be so long as within 365 days after repurchased, “Other Applicable Indebtedness”), then the receipt Borrower, at its election, may apply the Applicable Asset Sale 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 Cash Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that (x) the portion of the Applicable Asset Sale Proceeds (but not the other Net Cash Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Asset Sale 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 (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing be allocated to the Administrative Agent); Initial Term Loans and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested the 2022 Incremental Term B- 2 Loans on a pro rata basis in each case as set forth herein above, shall be immediately applied accordance with the terms hereof to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Initial Term Loans and the Additional 2022 Incremental Term B-2 Loans), as applicable, and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among amount of prepayment of the Closing Date Initial Term Loans and the Additional 2022 Incremental Term B-2 Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made that would have otherwise been required pursuant to this Section 2.05(b), first, 2.06(b)(i) shall be applied ratably reduced accordingly and (y) to the L/C Borrowings 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 Initial Term Loans and the Swing Line Loans, second, shall be applied ratably to 2022 Incremental Term B-2 Loans on a pro rata basis in accordance with the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligationsterms hereof; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.91
Appears in 2 contracts
Sources: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Mandatory. (i) Within five If (5A) 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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) or (v) of Section 5.02(e)) or (B) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Loan Party of Net Cash Proceeds in excess of U.S.$20,000,000, the Borrower shall make a prepayment in an aggregate principal amount of Advances equal to the product of (I) 100% of such Net Cash Proceeds less the percentage of such Net Cash Proceeds reinvested in accordance with this Section 2.05(b)2.08(b)(i) (such net percentage, the amount remaining“Asset Percentage”) and (II) the Net Cash Proceeds realized or received with respect to (y) a Disposition, if anywithin 60 days and (z) a Casualty Event, within five Business Days, in each case, after receipt of such Net Cash Proceeds by such Loan Party; provided that, no such prepayment shall be required pursuant to this Section 2.08(b)(i) with respect to such portion of such Net Cash Proceeds that the prepayment Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its (or such Loan Party’s) reinvestment of, or written intent to reinvest or entry into a legally binding commitment to reinvest, such Net Cash Proceeds in full assets useful for its business within 90 days following receipt of all L/C Borrowingssuch Net Cash Proceeds (the “Reinvestment Period”) (and, Swing Line Loans and Revolving Credit Loans outstanding at in the case of any such time and written intent or binding commitment, the Cash Collateralization of the remaining L/C Obligations in full may be retained reinvestment contemplated by such written intent or binding commitment shall have been consummated within 180 days (or such longer period as requested by the Borrower for use in and agreed by the ordinary course Required Lenders following the last day of its business. Upon the drawing Reinvestment Period)); provided that (1) so long as an Event of Default shall have occurred and be continuing, no Loan Party shall be permitted to make any such reinvestments (other than pursuant to a legally binding commitment that such Loan Party entered into at a time when no Event of Default is continuing) and (2) if any proceeds are not so reinvested by the deadlines specified above or if any such proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to the Asset Percentage of any Letter of Credit that has been such Net Cash Collateralized, the funds held as Cash Collateral Proceeds shall be applied to the prepayment of the Advances.
(without ii) The Borrower shall be required to prepay all Advances upon the occurrence of a Change of Control.
(iii) If any further Governmental Authority (A) condemns, nationalizes, seizes, attaches, compulsorily acquires, confiscates or otherwise expropriates (directly or indirectly through measures tantamount to expropriation) all or substantially all of the property or the assets of any Loan Party or of the share capital of any Loan Party, (B) assumes custody or control of all or substantially all of the property or the assets, or of the business or operations, of any Loan Party or of the share capital of any Loan Party, (C) takes or directs any action by for the dissolution or notice disestablishment of any Loan Party or any action that would prevent any Loan Party from carrying on all or substantially all of its business or operations or (D) takes any administrative action or enacts any law to or from effect any of the foregoing, then, in each case, the Borrower or any other Loan Party) shall be required to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableprepay all Advances within 45 days after such occurrence.
Appears in 2 contracts
Sources: Credit Agreement (Grana & Montero S.A.A.), Credit Agreement (Grana & Montero S.A.A.)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and If for any reason the related Compliance Certificate has been delivered pursuant to Section 6.02(a)Total Outstandings at any time exceed the Aggregate Commitments then in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate principal amount of Loans equal to such excess; provided, however, that the Excess Borrower shall not be required to Cash Flow Percentage of Excess Cash Flow for Collateralize the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid L/C Obligations pursuant to this Section 2.05(a)(i2.06(b) (provided that any such payment unless after the prepayment in full of the Revolving Credit Loans was accompanied by a permanent reduction the Total Outstandings exceed the Aggregate Commitments then in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) beloweffect.
(ii) If Upon completion of (i) any Loan Party early termination of any Hedge Transaction used in determining the Borrowing Base on the immediately preceding Determination Date or (ii) the Disposition of any assets included in the Borrowing Base on the immediately preceding Determination Date, the effect of which termination or Disposition would be a reduction in the Borrowing Base then in effect of 10.0% or more on a pro forma basis, the Borrowing Base shall immediately and automatically upon consummation of such transaction be reduced by the Borrowing Base contribution of such Hedge Transaction or assets, and all Net Cash Proceeds from the termination of such Hedge Transaction or the Disposition of such assets shall be applied to reduce or eliminate any Borrowing Base Deficiency resulting from such reduction.
(iii) To the extent not covered by (ii), if the Borrower or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(bunder Section 7.05(g) or 7.05(c)) suffers a Casualty Event 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 use the Net Cash Proceeds immediately upon receipt thereof by to eliminate any Borrowing Base Deficiency resulting from such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below)sale; provided, however, provided that, with respect to the proceeds of any Disposition permitted by Section 7.05(g) shall not constitute Net Cash Proceeds realized under a Disposition described to the extent that (A) such proceeds are reinvested in this Section 2.05(b)(ii)replacement properties or assets, at the election of the Borrower (pursuant to a notice in writing or other productive properties or assets, acquired by the Borrower to or a Restricted Subsidiary of a kind then used or usable in the Administrative Agent on business of the applicable Person (with equal or prior to greater aggregate Attributed Value) within 180 days from the date of receipt thereof or (B) if the applicable Borrower or Restricted Subsidiary intends to acquire replacement properties or assets, or other productive properties or assets, with such Disposition)proceeds as part of a like-kind exchange under Section 1031 of the Code, and so long as no Default shall have occurred and be continuing, the potential replacement properties or assets are identified by such Loan Party Borrower or such Restricted Subsidiary may reinvest all or any portion within 180 days from the date the ownership to the sold assets is transferred to the buyer of such property and the proceeds from such property are reinvested to acquire such replacement properties or assets (with equal or greater aggregate Attributed Value) within 180 days from the date the ownership to the sold assets is transferred to the buyer of such property; provided further that, the proceeds of any Casualty Event shall not constitute Net Cash Proceeds to the extent that such proceeds are reinvested in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (replacement properties or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)assets, such purchase shall have been consummated (as certified or other productive properties or assets, acquired by the Borrower or a Guarantor of a kind then used or usable in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment business of the Loans as set forth in this Section 2.05(b)(ii).
applicable Person (iiiwith equal or greater aggregate Attributed Value) Upon any Debt Issuance, within 180 days from the Borrower shall prepay an aggregate principal amount date of Loans 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 (vii) below)thereof.
(iv) Upon any Extraordinary Receipt received the incurrence or issuance by or paid to or for the account of any Loan Party Borrower or any of its Subsidiaries, and not otherwise included in clause Restricted Subsidiaries of any Indebtedness (ii), (iii) other than Indebtedness expressly permitted to be incurred or (iv) of this issued pursuant to Section 2.05(b7.03), 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 such Loan Party the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility Total Outstandings made pursuant to this Section 2.05(b2.06(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansBorrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Sandridge Energy Inc), Credit Agreement (Sandridge Energy Inc)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property or assets (other than any Disposition of any property permitted by Sections Section 7.05(a), 7.05(b) or 7.05(cthrough Section 7.05(i)) which results in the realization by such Person of Net Cash ProceedsProceeds or such Loan Party receives Net Cash Proceeds from insurance or condemnation proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds in excess of $250,000 per occurrence or $1,000,000 (in the aggregate for such Net Cash Proceeds received from and after the Restatement Effective Date) upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds described in this Section 2.05(b)(i), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such Disposition or receipt of insurance or condemnation proceeds), and so long as no Event of Default shall have occurred and be continuing, such Loan Party may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business so long as within 180 days (or within 365 days if the applicable Loan Party has entered into a binding contract for reinvestment within 180 days of receipt of such proceeds) after the receipt of such Net Cash Proceeds, such purchase shall have been consummated (in each case, as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any such Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) Upon the incurrence or issuance by any Loan Party of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party, and not otherwise included in clause (i) or (ii) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom in excess of $250,000 per occurrence or $1,000,000 (in the aggregate for such Net Cash Proceeds received from and after the Restatement Effective Date) immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(iii), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such DispositionNet Cash Proceeds), and so long as no Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business so long as within 365 180 days after the receipt of such Net Cash Proceeds (or within 545 365 days if the applicable Loan Party has entered into a binding contract for reinvestment within 180 days of receipt of such proceeds) after the receipt of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase shall have been consummated (in each case, as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any such Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below2.05(b)(iii).
(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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)[Intentionally omitted].
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility (and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-pro rata basis among the Closing Date Term Loans basis) and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, second to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b) (without a reduction of the aggregate commitments thereunder). Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be (A) accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 and third, (B) paid to Cash Collateralize outstanding Letters the Lenders in accordance with their respective Applicable Percentages in respect of Crediteach of the relevant Facilities.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(viii) Amounts to be applied as provided in this Section 2.05(b) to the prepayment of Loans of any Class shall be applied first to reduce outstanding Base Rate Loans of such Class. Any amounts remaining after each such application shall, at the option of the Borrower, be applied to prepay Eurodollar Rate Loans of such Class immediately and/or shall be deposited in a separate Prepayment Account for the Loans of such Class. The Administrative Agent shall apply any cash deposited in the Prepayment Account for any Class of Loans to prepay Eurodollar Rate Loans of such Class on the last day of their respective Interest Periods (or, at the direction of the Borrower, on any earlier date) until all outstanding Loans of such Class have been prepaid or until all the allocable cash on deposit in the Prepayment Account for such Class has been exhausted. For purposes of this Agreement, the term “Prepayment Account” for any Class of Loans shall mean an account established by the Borrower with the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this Section 2.05(b). The Prepayment Accounts shall not bear interest. If the maturity of the Loans has been accelerated pursuant Section 8.02, the Administrative Agent may, in its sole discretion, apply such funds to satisfy any of the Obligations in accordance with Section 8.03. The Borrower hereby pledges and assigns to the Administrative Agent, for the benefit of the Secured Parties and to secure the Obligations, each Prepayment Account so established.
Appears in 2 contracts
Sources: Amendment No. 2 and Reaffirmation of Collateral Documents (Einstein Noah Restaurant Group Inc), Credit Agreement (Einstein Noah Restaurant Group Inc)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a)At any time in which any Incremental Term Facility Loan remains outstanding, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If if any Loan Party or any of its Subsidiaries (other than Agway Subsidiaries, Inactive Subsidiaries or Excluded Subsidiaries) Disposes of any property (other than any Disposition of any property permitted by Sections Section 7.05(a), 7.05(b(b), (c), (d), (e) or 7.05(c)(h) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viii) and (viiv) below); provided, however, thatthat (A) the first $25,000,000 of such Net Cash Proceeds received in any fiscal year (the “Exempt Proceeds”) shall not be subject to the mandatory prepayment requirements set forth in this Section 2.05(b)(i), and (B) with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii)2.05(b)(i) in excess of the Exempt Proceeds, at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days 12 months after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase reinvestment shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that (A) any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, within such 12 month period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.05(b)(i), and (B) if a Default has occurred and is continuing at any time that the Borrower or a Subsidiary Guarantor receives or is holding any Net Cash Proceeds which have not yet been reinvested, such Net Cash Proceeds shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(iiiii) Upon At any Debt Issuancetime in which any Incremental Term Loan remains outstanding, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries (other than Agway Subsidiaries, Excluded Subsidiaries, or Inactive Subsidiaries), and not otherwise included in clause (ii), (iii) or (ivi) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.2.05
Appears in 2 contracts
Sources: Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp)
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)The Borrowers shall, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for on the applicable Excess Prepayment Date with respect to Net Cash Flow Period less Proceeds received by any Loan Party from (A) the aggregate principal amount sale, lease, transfer or other disposition including any and all involuntary dispositions, whether by condemnation, casualty loss or otherwise, of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment assets of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than (w) any Disposition 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 any Loan Party or any of its Subsidiaries of any property Debt (other than Debt permitted by Sections 7.05(ato be incurred or issued pursuant to Section 5.02(b), 7.05(b) or 7.05(c)) which results in but including the realization by such Person of Net Cash Proceeds, Proceeds from the Borrower shall prepay an aggregate principal issuance of Senior Notes in excess of the amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments required to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at repay the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such DispositionBridge Loan Facility), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iiiC) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, Subsidiaries and not otherwise included in clause (A) or (B) above (other than any Extraordinary Receipts which are reinvested in assets used in the operation of the business within 18 months of receipt of such proceeds), prepay an aggregate principal amount of the Term 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 Net Cash Proceeds from the sale of Collateral (other than as set forth in clauses (i), (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 (and if so directed, the Borrower Administrative Agent shall) deposit 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 prepay an aggregate principal apply the amount of Loans equal such payment to 100% the prepayment of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Term Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Advances; provided, however, that with respect such Term Loan Advances shall continue to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans bear interest as set forth in this Section 2.05(b)(iv).
(v) Each prepayment 2.06 until the last day of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of CreditInterest Period therefor.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Term Loan Agreement (Building Materials Manufacturing Corp), Term Loan Agreement (BMCA Acquisition Sub Inc.)
Mandatory. (i) Within five Beginning with the fiscal year ending December 31, 2016, within ten (510) 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(a6.02(b), the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to (I) the Excess Cash Flow excess (if any) of the ECF Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements over (II) (x) the aggregate principal amount of all Term Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (vvi) and (viiix) below.) and (y) the aggregate principal amount of Revolving Credit Loans prepaid pursuant to Section 2.05(a)(i) and accompanied by a permanent reduction in the Revolving Credit Commitment equal to the amount of such prepayment pursuant to Section 2.06(a);
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property pursuant to Section 7.05(f) or (other than any Disposition of any property p) or pursuant to a transaction not otherwise permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) Section 7.05 which results in the realization by such Person of Net Cash ProceedsProceeds in excess of $1,000,000 in any fiscal year, the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon within five (5) Business Days receipt thereof by such Person (such prepayments to be applied as set forth in clauses (vvi) and (viiix) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower Borrowers (pursuant to a notice in writing as notified by the Borrower Borrowers 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 two hundred seventy (270) days after the receipt of such Net Cash Proceeds (or or, within 545 days if the applicable such two hundred seventy- (270-) day period, such Loan Party has entered or such Subsidiary enters into a binding contract for reinvestment of commitment to so reinvest such Net Cash Proceeds, and such Net Cash Proceeds are so reinvested within 365 ninety (90) days after the expiration of such Dispositiontwo hundred seventy- (270-) day period), such purchase shall have been consummated (as certified by the Borrower Borrowers in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) [Intentionally Omitted].
(iv) Upon the incurrence or issuance by any Debt IssuanceLoan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower Borrowers shall prepay an aggregate principal amount of Loans 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 (vvi) and (viiix) below).
(ivv) Upon any Extraordinary Casualty/Condemnation 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 (ii), (iii) or (iv) of this Section 2.05(b), the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds in excess of $1,000,000 in any fiscal year received therefrom immediately upon within five (5) Business Days after receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viiix) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity paymentsa Casualty/Condemnation Receipt, at the election of the Borrower Borrowers (pursuant to a notice in writing as notified by the Borrower Borrowers to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity paymentsNet Cash Proceeds), and so long as no Default shall have occurred and be continuing, the Borrowers shall not be required to prepay Loans hereunder in respect of such Net Cash Proceeds to the extent such Loan Party or such Subsidiary may apply reinvests all or any portion of such Net Cash Proceeds in assets used or useful in the business of such Loan Party or its Subsidiaries within 365 two hundred seventy (270) days after the receipt of such cash proceeds to replace or repair the equipmentNet Cash Proceeds (or, fixed assets or real property in respect of which within such cash proceeds were received two hundred seventy- (or within 545 days if the applicable 270-) day period, such Loan Party has entered or such Subsidiary enters into a binding contract commitment to repairso reinvest such Net Cash Proceeds, replace or restore and such property or make such reinvestment Net Cash Proceeds are so reinvested within 365 ninety (90) days after the expiration of such receipttwo hundred seventy- (270-) day period); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(v).
(vvi) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility and to the next four (4) principal repayment installments thereof under the Term A Facility in direct order of maturity maturity, second, to the following four remaining principal repayment installments under the Term A Facility (4other than the final scheduled installment due on the Maturity Date) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)and, and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), secondthird, to the Revolving Credit Facility in the manner set forth in clause (viiix) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vivii) Notwithstanding any other provisions of this Section 2.05(b), (i) to the extent that any of or all the Net Cash Proceeds of any Asset Sale by a Non-Guarantor Subsidiary (a “Non-Guarantor Disposition”), the Net Cash Proceeds of any Casualty/Condemnation Receipt from a Non-Guarantor Subsidiary (a “Non-Guarantor Recovery Event”), or Excess Cash Flow attributable to any Non-Guarantor Subsidiary is prohibited or delayed by applicable local law from being repatriated to the applicable Borrowers, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to prepay Loans and, instead, such amounts may be retained so long, but only so long, as the applicable local law will not permit repatriation to the applicable Borrowers (the Borrowers hereby agree to cause the applicable Non-Guarantor Subsidiary to use commercially reasonable efforts to take actions 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) be offered to be applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Loans pursuant to this Section 2.05(b) to the extent provided herein and (ii) to the extent that the Borrowers have determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Non-Guarantor Disposition, any Non-Guarantor Recovery Event or attributed Excess Cash Flow would have a material adverse tax cost consequence (after Holdings, the Borrowers and/or the applicable Non-Guarantor Subsidiary have used commercially reasonable efforts to take actions to reduce such tax consequences and after taking into account available foreign tax credits) with respect to such Net Cash Proceeds or Excess Cash Flow, an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Non-Guarantor Subsidiary, provided that, in the case of this clause (ii) on or before that date on which any such Net Cash Proceed or Excess Cash Flow so retained would otherwise have been required to be applied to prepayments pursuant to Section 2.05, the Borrowers may apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such prepayments as if such Net Cash Proceeds or Excess Cash Flow has been received by the Borrowers (net of additional taxes that would be payable had such amounts actually been repatriated).
(viii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower 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.
(viiix) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit LoansLoans (without a corresponding reduction of the Revolving Credit Commitments), and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(x) Upon the receipt by any Loan Party of the proceeds of any Specified Equity Contribution pursuant to Section 8.04, such Loan Party shall promptly prepay the Term Loans with such proceeds which will be applied in accordance with Section 2.05(a)(i).
Appears in 2 contracts
Sources: Credit Agreement (Ichor Holdings, Ltd.), Credit Agreement (Ichor Holdings, Ltd.)
Mandatory. (i) Within five (5) ten Business Days after financial statements have been delivered pursuant to receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds from any Asset Sale or series of related Asset Sales permitted by Section 6.01(a8.01(d), (k), (l) and the related Compliance Certificate has been delivered pursuant to Section 6.02(aor (m), the Borrower shall either (1) prepay an aggregate principal amount of Loans or (2) commit to prepay, redeem, purchase, defease or otherwise satisfy other term Indebtedness of the Borrower to the extent permitted by Section 8.05 (other than Section 8.05(i)) (and thereafter consummate such prepayment, redemption, purchase, defeasance or satisfaction within an additional 45 days), or any combination of the foregoing in an aggregate amount equal to the Excess Cash Flow Percentage 100% of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) such Net Available Proceeds (provided that with any such payment prepayments of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (viv) and (viivi) below); provided, that at the election of the Borrower (as notified by the Borrower to the Administrative Agent within ten Business Days following the date of receipt of such Net Available Proceeds of such Asset Sale), the Borrower and its Restricted Subsidiaries may reinvest all or any portion of such Net Available Proceeds in assets that are used or useful in the business of the Borrower and the Restricted Subsidiaries (including by way of merger or Investment) (x) within 365 days following the date of receipt of such Net Available Proceeds of such Asset Sale or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding commitment to use such Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause (x), within 180 days after the end of such 365-day period; provided further, however, that any Net Available Proceeds not subject to such legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest the Net Available Proceeds from such Asset Sale as set forth above) shall be immediately applied to the prepayment of the Loans or other term Indebtedness as set forth in this Section 2.04(b)(i).
(ii) If any Loan Party Within five days after the receipt by the Borrower or any of its Subsidiaries Disposes Restricted Subsidiary of any property (other than Net Available Proceeds from any Disposition Debt Issuance or incurrence of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash ProceedsCredit Agreement Refinancing Indebtedness, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all such Net Cash Available Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viv) and (viivi) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon Within ten days after the receipt by the Borrower or any Debt IssuanceRestricted Subsidiary of any Net Available Proceeds of any Casualty Event, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Available Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (vii) 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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viivi) below); provided, howeverthat, that with respect to any proceeds of insuranceNet Available Proceeds realized with respect to any such Casualty Event, condemnation awards (or payments in lieu thereofA) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within ten days following the date of receipt of such insurance proceeds, condemnation awards or indemnity paymentsNet Available Proceeds of such Casualty Event), the Borrower and so long as no Default shall have occurred and be continuing, such Loan Party its Restricted Subsidiaries may reinvest all or such Subsidiary may apply within 365 days after the receipt any portion of such cash proceeds to replace Net Available Proceeds in the replacement or repair the equipment, fixed restoration of any properties or assets or real property in respect of which such cash proceeds Net Available Proceeds were received paid or in assets that are used or useful in the business of the Borrower and the Restricted Subsidiaries (including by way of merger or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment Investment) (x) within 365 days following the date of receipt of such receiptNet Available Proceeds of such Casualty Event or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding commitment to use such Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause (x), within 180 days after the end of such 365-day period; and provided, provided further, however, that any cash proceeds Net Available Proceeds not subject to such legally binding commitment or so applied reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest such Net Available Proceeds as set forth above) shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.04(b)(iii); and provided further, however, that with respect to any such replacement or restoration of property or assets constituting Collateral, the Borrower shall take all actions specified in Section 6.09 in order that such property or asset shall constitute Collateral upon the acquisition or construction thereof and (B) if the Borrower and its Restricted Subsidiaries are required to apply any such Net Available Proceeds under the applicable Master Lease to any other purpose, such Net Available Proceeds may be applied to such purpose in lieu of making the prepayment of the Loans required by this Section 2.04(b)(iii); provided, however, that any Net Available Proceeds not subject to any such requirements under the applicable Master Lease, or that are subsequently released from such use, shall be immediately applied to the prepayment of the Loans as otherwise set forth in this Section 2.04(b)(iii).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b) shall be applied first (a) ratably to each Class of Term Loans (or, in the following ordercase of New Term Loans, firstExtended Term Loans and Other Term Loans, to on a less than pro rata basis if elected in the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment) and (b) (x) for the Term Facility and Loans, to the principal repayment installments thereof in direct forward order of maturity to the following four and (4y) scheduled payments to be made on each for any other Class of Term Loan Repayment Date arising after Loans, as set forth for such Class in the applicable payment date (on a pro-rata basis among the Closing Date Term Loans Extension Amendment, Refinancing Amendment or Incremental Joinder Agreement and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (viivi) below; provided that, notwithstanding the foregoing, each prepayment pursuant to Section 2.04(b)(ii) above with the proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to the applicable Refinanced Debt. Any prepayment of the Term Facility on or prior to the first anniversary of the Closing Date pursuant to Section 2.04(b)(ii) in connection with a Repricing Event described in clause (i) of this the definition thereof shall be accompanied by the payment of the fee described in Section 2.05(b2.08(c), and third, to Cash Collateralize outstanding Letters of Credit.
(viv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansBorrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; , and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause clauses (i), (ii), ) or (iii), or (iv) of this Section 2.05(b2.04(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its their business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Vici Properties Inc.), Credit Agreement (Vici Properties Inc.)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) In the event and the related Compliance Certificate has been delivered pursuant to Section 6.02(a)on such occasion that any Net Cash Proceeds are received by or on behalf of any Loan Party or any Subsidiary of a Loan Party in respect of any Reduction Event, the Borrower shall prepay Loans no later than the fifth Business Day following the occurrence of such Reduction Event (or in the case of a Reduction Event described in clause (a) of the definition of the term “Reduction Event”, on or before the fifth Business Day of the month following the month in which such sale occurs) by an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i(A) if such Reduction Event is an event described in clause (provided that any such payment a), (b), (c) or (e) of the Revolving Credit Loans was accompanied by a permanent reduction definition of the term “Reduction Event”, 100% of the Net Cash Proceeds received with respect to such Reduction Event and (B) if such Reduction Event is an event described in clause (d) of the Revolving Credit Commitment)definition of the term “Reduction Event”, 50% of the Net Cash Proceeds received with respect to such Reduction Event (with such prepayments to be applied as set forth in clauses (vSection 2.04(b)(iii) and (viiSection 2.04(b)(iv) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(bprovided that any Net Cash Proceeds from an Asset Sale that is a Reduction Event shall not be applied to prepay Loans, in accordance with this Section 2.04(b)(i) or 7.05(c)) which results in until the realization by such Person aggregate amount of Net Cash ProceedsProceeds not yet applied in accordance with this Section 2.04(b)(i) exceeds $1,000,000, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of at which time all such Net Cash Proceeds immediately upon receipt thereof shall be so applied. Notwithstanding the foregoing to the contrary:
(A) (1) if Net Cash Proceeds from an Asset Sale relating to Restaurant Businesses (including any Refranchising Asset Sale), when combined with all other such events occurring in any fiscal year of Parent and its Subsidiaries, results in aggregate Net Cash Proceeds of not more than $20,000,000 for such fiscal year, to the extent that the Borrower applies the Net Cash Proceeds from such event (or a portion thereof) within the Reinvestment Period to acquire Reinvestment Assets, then no prepayment of Loans shall be required pursuant to Section 2.04(b)(i) in respect of such amount except to the extent of any such Net Cash Proceeds therefrom that have not been so applied by the end of such Person Reinvestment Period, at which time a prepayment of Loans shall be required in an amount equal to such Net Cash Proceeds that have not been so applied (with such prepayments prepayment to be applied as set forth in clauses (vSection 2.04(b)(iii) and (viiSection 2.04(b)(iv) below); provided, however, that, with respect provided that Parent shall deliver to the Administrative Agent a certificate of a Responsible Officer promptly (and in any event no later than the fifth Business Day of the month following the month in which such Net Cash Proceeds were received) following receipt of any Net Cash Proceeds realized under of an Asset Sale relating to Restaurant Businesses (including any Refranchising Asset Sale) for which a Disposition described in this prepayment of Loans, may be required pursuant to Section 2.05(b)(ii), at the election 2.04(b)(i) setting forth a reasonably detailed calculation of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion amount of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C ObligationsProceeds; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Dennys Corp), Credit Agreement (Dennys Corp)
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Holdings or any of its Subsidiaries (x) Disposes of any property (other than than, so long as any Australian Dollar Term A Loans are then outstanding, any real property located in Australia, or any Disposition of any property permitted by Sections 7.05(aSection 7.05 (except pursuant to Section 7.05(j), 7.05(bSection 7.05(k) or 7.05(cSection 7.05(l)) or in connection with the Sydney Sale) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of an aggregate amount of $12,000,000 per Fiscal Year, the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of such Net Cash Proceeds immediately upon in excess of such $12,000,000 no later than the later of (a) five (5) Business Days following receipt thereof by such Person and (b) five (5) Business Days after such $12,000,000 threshold is reached in such Fiscal Year or (y) Disposes of any real property located in Australia, the Australian Borrower shall prepay an aggregate principal amount of Australian Dollar Term A Loans equal to 100% of the Net Cash Proceeds of such Disposition (in each case such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower .
(pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)ii) [Reserved].
(iii) Upon the incurrence or issuance by Holdings or any Debt Issuance, of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03) the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of all Net Cash Proceeds received therefrom immediately upon on the day of receipt thereof by such Loan Party Holdings or such Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party Holdings or any of its Subsidiaries, Subsidiaries and not otherwise included in clause paragraph (iii), (iiiii) or (iviii) of this Section 2.05(b), the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of all Net Cash Proceeds received therefrom immediately upon in excess of $10,000,000 per Fiscal Year no later than the later of (a) five (5) Business Days following receipt thereof by such Loan Party or Person and (b) five (5) Business Days after such Subsidiary $10,000,000 threshold is reached in such Fiscal Year (such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment (or Cash Collateralization, as applicable) of Loans Pro Rata Obligations pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, ratably to the Term Facility and A Loans held by all Term Lenders in accordance with their Applicable Percentages (allocated to the next four principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)and, and thereafter, on a pro-pro rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loanthereof and the repayment at the final maturity thereof), second, any excess after the application of such proceeds in accordance with clause first above, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), ) and third, any excess after the application of such proceeds in accordance with clauses first and second above may be retained by the Borrowers. Any prepayment of a Loan pursuant to Cash Collateralize outstanding Letters this Section 2.05(b) shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each prepayment pursuant to Section 2.05(b)(i)(y) shall be applied, first, ratably to the Australian Dollar Term A Loans held by the applicable Australian Dollar Term Loan A Lenders in accordance with their Applicable Percentages (allocated to the next four principal repayment installments thereof in direct order of Creditmaturity and, thereafter, on a pro rata basis to the remaining principal repayment installments thereof and the repayment at the final maturity thereof) and, second, to the extent any excess remains, in accordance with the first sentence of this Section 2.05(b)(v).
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the aggregate Revolving Credit Facility Commitments at such time, the Borrower Revolving Credit 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 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 the Administrative Agent notifies Holdings at any time that the Total Revolving Credit Outstandings denominated in Alternative Currencies as of the applicable Revaluation Date exceeds an amount equal to 103% of the Alternative Currency Sublimit then in effect, then, within two (2) Business Days after receipt of such excessnotice, the Revolving Credit Borrowers shall prepay Revolving Credit Loans and/or Cash Collateralize Letters of Credit (in an aggregate amount equal to 105% of the face amount thereof) in an aggregate amount sufficient to reduce such Total Revolving Credit Outstandings denominated in Alternative Currencies as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit LoansLoans held by all Revolving Credit Lenders in accordance with their Applicable Percentages, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the any Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable. Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b) shall be applied ratably to the outstanding Revolving Credit Loans.
(viii) The Borrowers shall, within five (5) Business Days of the Third Restatement Date, make a prepayment in full of the Euro Term A Loans if the Acquisition is not consummated within five (5) Business Days of the Third Restatement Date.
Appears in 2 contracts
Sources: Credit Agreement (ACCO BRANDS Corp), Credit Agreement (ACCO BRANDS Corp)
Mandatory. (i) Within Prior to the consummation of a Qualified MLP IPO, within five (5) Business Days after the delivery of financial statements have been delivered pursuant to Section 6.01(aSections 8.03(b) and (c), commencing with the related Compliance Certificate has been delivered pursuant to Section 6.02(a)financial statements for the Fiscal Quarter ending March 31, 2014, the Borrower shall prepay pay to the Administrative Agent without duplication and for application in accordance with Section 2.04(b)(viii), an aggregate principal amount of Loans equal to (x) 75.0% of the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Fiscal Quarter minus (y) the amount of voluntary prepayments of Term Advances under Section 2.04(a) during such Fiscal Quarter paid from Internally Generated Cash and (z) the amount of mandatory prepayments of Term Loans under this Section 2.04(b) during such Fiscal Quarter (other than subclause (i)(x) of this clause (b)) to the extent made from amounts that increased Net Income. No mandatory prepayments shall be required from Excess Cash Flow Period less following the aggregate principal amount consummation of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) belowQualified MLP IPO.
(ii) If no later than the fifth Business Day following the date of receipt of any Loan Party or Asset Sale Proceeds by any of its Subsidiaries Disposes of any property the Loan Parties (other than in respect of (A) any Disposition of any property sale, transfer or other disposition permitted by under Sections 7.05(a8.02(e)(i) through (v), 7.05(b(vii) and (viii) and (B) sales, leases or 7.05(c)) which results licenses out of other assets for aggregate consideration of less than $750,000 with respect to any transaction or series of related transactions and less than $1,000,000 in the realization by such Person of Net Cash Proceedsaggregate during any Fiscal Year), the Borrower shall prepay not have delivered a Reinvestment Notice in respect thereof, then the Borrower shall pay to the Administrative Agent without duplication and for application in accordance with Section 2.04(b)(viii), an aggregate principal amount equal to the amount of Loans equal such Asset Sale Proceeds; provided that, if the Borrower shall have delivered a Reinvestment Notice in respect of any Asset Sale Proceeds, then (1) the Loan Parties shall be permitted to 100% use such Asset Sale Proceeds to make a Permitted Investment to the extent that such Asset Sale Proceeds are applied by a Loan Party to such Permitted Investment within 12 months of such Net Cash Proceeds immediately upon receipt thereof by such Person Asset Sale, and (such prepayments 2) to be applied as the extent that the conditions set forth in clauses clause (v1) and (vii) below); providedabove are not satisfied, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at no later than the election of first Business Day following the Borrower (pursuant to a notice in writing failure by the Borrower to satisfy such conditions, the Borrower shall pay to the Administrative Agent on or prior without duplication and for application in accordance with Section 2.04(b)(viii), an aggregate amount equal to the date remaining amount (if any) of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Asset Sale Proceeds not subject otherwise applied pursuant to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iiclause (1).
(iii) Upon Within one Business Day of the receipt of any Debt Issuance, Proceeds by any of the Loan Parties 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower pay to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity paymentswithout duplication and for application in accordance with Section 2.04(b)(viii), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excessDebt Proceeds.
(viiiv) Prepayments (A) If, no later than the fifth Business Day following the date of receipt of any Insurance Proceeds or Eminent Domain Proceeds by any of the Revolving Credit Facility made Loan Parties, the Borrower shall not have delivered written notice of a Responsible Officer of the Borrower that the Borrower intends to deliver a Reinvestment Notice or Repair Notice pursuant to Section 8.01(x)) in respect thereof (other than Insurance Proceeds in respect of an Electrabel Termination Event, which shall, for the avoidance of doubt be applied within such five Business Day period in accordance with Section 2.04(b)(viii) as provided in this Section 2.05(bparagraph), first, then the Borrower shall be applied ratably pay to the L/C Borrowings Administrative Agent without duplication and the Swing Line Loans, second, shall be applied ratably for application in accordance with Section 2.04(b)(viii) an aggregate amount equal to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case amount of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), such Insurance Proceeds or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit LendersEminent Domain Proceeds, as applicable; provided that, if the Borrower shall have delivered any such notice in respect of any such Insurance Proceeds or Eminent Domain Proceeds, then the Loan Parties shall be permitted to apply such proceeds in accordance with Section 8.01(x).
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Enviva Partners, LP), Credit and Guaranty Agreement (Enviva Partners, LP)
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans, the Term A-1 Loans and the Additional Term A-2 Loans), and thereafter, on a pro-rata basis amongto to the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among amongboth (a) as amongst the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis basis, the Term A-1 Loans and the Term A-2 Loans and (b) as amongst the remaining principal repayment installments of each eachthe Term LoanLoanLoans), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Borrower or any of its their Subsidiaries Disposes of any property or assets (other than any Disposition inventory in the ordinary course of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)business) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of $500,000 in the aggregate for any Fiscal Year, the Borrower Borrowers shall prepay on or prior to the date which is five (5) Business Days after the date of such receipt, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viivi) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and that so long as no Default or Event of Default exists, Net Cash Proceeds relating to the disposition of obsolete or retired equipment in the ordinary course of a Loan Party’s (or a Loan Party’s Subsidiary’s) business shall have occurred not be included (and be continuing, such shall not count against the $500,000 threshold set forth above) to the extent the applicable Loan Party (or such Subsidiary may reinvest all or any portion of applicable Loan Party’s Subsidiary) intends to use such Net Cash Proceeds in operating to acquire like assets so long as useful to its business within 365 ninety (90) days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into to reimburse itself for such a binding contract for reinvestment purchase occurring before receipt of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)Proceeds.
(iiiii) Upon the incurrence or issuance by any Debt IssuanceLoan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02 (including, without limitation, Section 7.02(h)), the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon on or prior to the date which is three (3) Business Days after the receipt thereof by such any Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viivi) below).
(iviii) Upon the receipt of any Extraordinary Receipt received by settlement of or paid payment to or for the account of any Loan Party or Loan Parties with respect to any property or casualty insurance, which results in the realization by such Person or Persons of its Subsidiaries, and not otherwise included Net Cash Proceeds in clause (ii), (iii) or (iv) excess of this Section 2.05(b)$500,000 in the aggregate for any Fiscal Year, the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon on or prior to the date which is three (3) Business Days after the date of receipt thereof by such Loan Party Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viivi) below); provided, however, provided that with respect to any proceeds Net Cash Proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity paymentsan Extraordinary Receipt, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments)Borrowers, and so long as no Event of Default shall have occurred and be continuing, such Loan Party Borrower or such Subsidiary may apply (A) utilize any Net Cash Proceeds constituting proceeds of casualty insurance to promptly repair or rebuild, as applicable, any property damaged to the comparable state of such property prior to the casualty event, or (B) reinvest all or any portion of such Net Cash Proceeds in fixed capital or operating assets, in each case of clause (A) or (B) so long as (x) within 365 180 days after receipt of such Net Cash Proceeds, such repair, rebuilding or reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (y) if a definitive agreement to so repair, rebuild or reinvest has been executed within such 180-day period, then such repair, rebuilding or reinvestment shall have been consummated within 180 days after the receipt entering into of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)definitive agreement; and provided, further, however, provided further that any cash proceeds Net Cash Proceeds not subject to such definitive agreement or so applied reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower 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 excessexcess (such prepayments and/or Cash Collateralization to be applied as set forth in clause (vi) below).
(viiv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) (other than clause (iv)) shall be applied, first, to the Term Loans (and, if applicable, any Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender agrees to receive less than its pro rata share of such prepayment) and second, to the Revolving Credit Facility (without permanent reduction of the Revolving Credit Commitments) in the manner set forth in clause (vi) of this Section 2.05(b). Subject to Section 2.16, such prepayments shall be paid to the Lenders pro rata in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
(vi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b)) shall be applied, first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansBorrowings, second, shall be applied ratably to the outstanding prepay Revolving Credit LoansLoans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case) and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), and the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower Borrowers for use in the ordinary course of business; provided, however, that, in the case of assets that are acquired as part of a Permitted Acquisition and subsequently sold by a Borrower or a Subsidiary within thirty (30) days after such Permitted Acquisition, if such Permitted Acquisition was financed by Revolving Loans, then the mandatory prepayments with respect to such sold assets will be applied first ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case), second, to the Term Loans (and, if applicable, any Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender agrees to receive less than its businesspro rata share of such prepayment) and third, to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the any Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Construction Partners, Inc.), Credit Agreement (Construction Partners, Inc.)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing with the delivery of the financial statements for the fiscal year ended November 30, 2008) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of Term Loans equal to the Excess Cash Flow Percentage excess (if any) of (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of Excess Cash Flow for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements over (B) the sum of (1) the aggregate principal amount of all Term Loans voluntarily prepaid pursuant to Section 2.05(a)(i) during such fiscal year and (provided that any such payment 2) solely to the extent the amount of the Revolving Credit Loans was accompanied by a permanent reduction Commitments are reduced pursuant to Section 2.06 in connection therewith (and solely to the extent of the amount of such reduction), the aggregate principal amount of Revolving Credit Commitment), Loans voluntarily prepaid pursuant to Section 2.05(a)(i) during such fiscal year (such prepayments to be applied as set forth in clauses clause (viv) below); provided that (A) the ECF Percentage shall be 25% if the Consolidated Leverage Ratio as at the end of the fiscal year covered by such financial statements is less than or equal to 2.50:1.00 and greater than 2.00:1.00 and (viiB) belowthe ECF Percentage shall be 0% if the Consolidated Leverage Ratio as at the end of the fiscal year covered by such financial statements is less than or equal to 2.00:1.00.
(ii) If any Loan Party (A) the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(aSection 7.05 (other than clause (h) thereof), 7.05(b) or 7.05(c)(B) any Casualty Event occurs, which results in the realization by such Person of Net Cash Proceeds, the Borrower shall shall, within five Business Days of receipt of such Net Cash Proceeds, prepay an aggregate principal amount of Term Loans 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 clause (v) and (viiiv) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition or a Casualty Event described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to the fifth Business Day after the date of receipt of such DispositionNet Cash Proceeds), and so long as no Event of Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as useful for its business (including any Permitted Acquisitions) within 365 days (A) 9 months after the receipt of such Net Cash Proceeds or (B) if the Borrower or such Subsidiary enters into a contract to reinvest all or any portion of such Net Cash Proceeds in such assets within 9 months of the receipt thereof, 12 months after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)in each case, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, (or no longer intended to be so reinvested) shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon the incurrence or issuance by the Borrower or any Debt Issuanceof its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiiv) 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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, ratably to each of the Term A Facility and the Term B Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among basis; provided that such prepayment shall be applied first to Base Rate Loans to the Closing Date Term Loans and full extent thereof before application to Eurodollar Rate Loans, in each case in a manner that minimizes the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining amount of any payments required to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice pursuant to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableSection 3.05.
Appears in 2 contracts
Sources: Credit Agreement (MSCI Inc.), Credit Agreement (MSCI Inc.)
Mandatory. (i) Within five The Revolving Facility shall be automatically and permanently reduced by an amount equal to $50,000,000 (5provided, that, in no event shall the Revolving Facility be reduced to less than $150,000,000) Business Days after financial statements (such reduction of the Revolving Facility, to the extent it occurs, a “Revolving Facility Reduction Event”) on the earliest to occur of (A) the date of the Disposition of the Corporate Headquarters, (B) the date of receipt by any Loan Party of Net Cash Proceeds from an Involuntary Disposition of the Corporate Headquarters in an aggregate amount in excess of $5,000,000 to the extent such Net Cash Proceeds are not reinvested in assets (excluding current assets as classified by GAAP) that are useful in the business of the Borrower and its Subsidiaries within eighteen (18) months of the date of such Involuntary Disposition (it being understood that any such Net Cash Proceeds not so reinvested shall be deemed to have been received on the Business Day immediately following the expiration of such eighteen (18) month period), and (C) the date that is the first anniversary of the Closing Date (the “Mortgage Notice Date”); provided, that, in the case of this clause (C), if the Borrower has delivered written notice to the Lender electing to grant a Mortgage (subject to Permitted Liens) in the Corporate Headquarters in favor of the Lender for the benefit of the Secured Parties to secure the Secured Obligations (the “Collateral Notice”) on or prior to the Mortgage Notice Date, the Revolving Facility shall not be reduced pursuant to this Section 6.01(a2.05(b)(i)(C) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), so long as the Borrower shall prepay an aggregate principal amount of Loans equal have, on or prior to the Excess Cash Flow Percentage date that is ninety (90) days (or such extended period of Excess Cash Flow time as agreed to by the Lender in its reasonable discretion) after the Mortgage Notice Date, provided to the Lender a Mortgage and such Mortgaged Property Support Documents as the Lender may request to cause the Corporate Headquarters to be subject at all times to a Mortgage (subject to Permitted Liens) in favor of the Lender for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment benefit of the Revolving Credit Loans was accompanied by a Secured Parties to secure the Secured Obligations. For the avoidance of doubt, the automatic and permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth Facility on the dates contemplated in clauses (vA) and (viiB) belowabove shall occur at any time such Disposition occurs or such Net Cash Proceeds are received, as applicable, whether prior to or after the date the Borrower delivers the Collateral Notice and/or the a Mortgage and Mortgaged Property Support Documents for the Corporate Headquarters pursuant to clause (C) above.
(ii) If after giving effect to any Loan Party reduction or any termination of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash ProceedsRevolving Facility under this Section 2.05, the Borrower shall prepay an aggregate principal amount Letter of Loans 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 (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to Credit Sublimit exceeds the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower Letter of Credit Sublimit, as the case may be, shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize be automatically reduced by the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to of such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Zynga Inc), Credit Agreement (Zynga Inc)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below[Reserved.]
(ii) If Other than in connection with a Cost-Cutting Transaction (solely to the extent the 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 Subsidiaries (x) Disposes of any property (other than any in a Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 7.02), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds immediately upon within five (5) Business Days of the receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiii) 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 (B) with respect to any Net Cash Proceeds realized of (1) any property constituting an Asset Sale otherwise required to be applied under a Disposition described preceding clause (x) above in this Section 2.05(b)(ii), at 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 election prior written consent of the Borrower Required Lenders (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Dispositiontheir sole discretion), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified on terms and conditions reasonably agreed to by the Borrower in writing to the Administrative Agent)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 subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately 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).
(iii) Upon any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Loans equal Subject 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 (vii) 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 (iiSection 2.05(c), (iii) or (iv) of this Section 2.05(b)if applicable, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the each prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional outstanding NM Term Loans), ; and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of CreditRoll-up Loans.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Paperweight Development Corp), Dip Facility Agreement
Mandatory. (i) Within five (5) Business Days after the date the Borrower is required to deliver financial statements have been delivered pursuant to Section 6.01(a5.03(b) and (commencing with the related Compliance Certificate has been delivered pursuant to Section 6.02(aFiscal Year ended January 31, 2009), the Borrower shall prepay Advances in an aggregate principal amount of Loans equal to the Excess Cash Flow amount by which (A) the Prepayment Percentage of Excess Cash Flow Flow, if any, for the applicable Excess Cash Flow Period less Fiscal Year covered by such financial statements exceeds (B) the aggregate principal amount of all Loans prepaid voluntary prepayments made during such fiscal year pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment2.04(a), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If The Borrower shall, not later than five Business Days after receipt of any Net Cash Proceeds by any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results if not reinvested in accordance with the realization by such Person definition of Net Cash Proceeds, the Borrower shall ) prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings in an amount equal to 100% the amount of such Net Cash Proceeds immediately upon receipt thereof by such Person Proceeds.
(such prepayments iii) Each prepayment of Advances pursuant to clause (i) or (ii) of this Section 2.04(b) shall be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect direct order to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election remaining principal repayment installments of the Borrower Facility until all such installments are paid in full.
(pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior iv) All prepayments under this subsection (b) shall be made together with accrued interest to the date of such Disposition)prepayment on the principal amount prepaid, and subject to Section 2.04(v) below, together with any amounts owing pursuant to Section 9.04(c).
(v) In lieu of making any prepayment pursuant to this subsection (b) in respect of any Eurodollar Rate Advance other than on the last day of the Interest Period therefor, so long as no Event of Default shall have occurred and be continuing, the Borrower at its option may deposit with the Administrative Agent an amount equal to the amount of the Eurodollar Rate Advance to be prepaid and such Loan Party or such Subsidiary may reinvest all or any portion Eurodollar Rate Advance shall be repaid on the last day of such Net Cash Proceeds the Interest Period therefor in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase required amount. Such deposit shall have been consummated (as certified be held by the Borrower Administrative Agent in writing a corporate time deposit account established on terms reasonably satisfactory to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, earning interest at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt then-customary rate for accounts of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)type.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Express Parent LLC), Term Loan Credit Agreement (Express Parent LLC)
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below[Reserved].
(ii) If any Loan Party of the Borrowers or any of its Subsidiaries 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 of and other than the Permitted ▇▇▇▇▇▇▇▇▇ Disposition) which, in any property permitted by Sections 7.05(a)such case, 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceeds, the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such the Net Cash Proceeds received therefrom in excess of $30,000,000 in the aggregate for the Net Cash Proceeds received from all such Dispositions during the immediately upon receipt thereof by 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 Person Disposition occurred (such prepayments to be applied as set forth in clauses (v) and (viiviii) below, as applicable); provided, however, 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 Borrower Borrowers (pursuant to a notice in writing as notified by the Borrower Borrowers to the Administrative Agent on or prior to no later than 45 days after the date end of the fiscal quarter during which such DispositionDisposition occurred), and so long as no Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary the Borrowers may reinvest all or any portion of such Net Cash Proceeds in operating assets of the Borrowers so long as (A) within 365 330 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase reinvestment shall have been consummated (as certified by 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 Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to date such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)was executed.
(iii) Upon the occurrence of a Recovery Event with respect to the Borrowers which, in any Debt Issuancesuch case, results in the realization by such Person of Net Cash Proceeds, the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds received therefrom in excess of $30,000,000 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 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 (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 Borrowers of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary the Borrowers (such prepayments 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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ivapplicable).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility and to the principal repayment installments thereof as directed by the Borrowers and specified in direct the notice of prepayment, (provided that in the event that the Borrowers do not specify the order in which to apply prepayments, the Borrowers shall be deemed to have elected that such prepayment be applied to reduce the scheduled installments of principal of such Term Loans in reverse order of maturity to the following four (4maturity) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, to the Revolving Credit Facility without any reduction of the Revolving Credit Commitments in the manner set forth in clause (viiviii) of this Section 2.05(b), . Subject to Section 2.18 and third, to Cash Collateralize outstanding Letters of Credit.
clause (vi) If for any reason below, such prepayments shall be paid to the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) Lenders in an aggregate amount equal to such excess.
(vii) Prepayments accordance with their respective Applicable Percentages in respect of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablerelevant Facilities.
Appears in 2 contracts
Sources: Specified Acquisition Loan Joinder (Casella Waste Systems Inc), Credit Agreement (Casella Waste Systems Inc)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower The Company shall prepay the Committed Loans as hereinafter provided in an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 the Net Cash Proceeds received by any Loan Party from all Involuntary Dispositions with respect to Collateral within five (5) days of the date of receipt of such Net Cash Proceeds immediately upon receipt thereof by with respect to such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below)Involuntary Disposition; provided, however, that, with respect to any Net Cash Proceeds realized under a an Involuntary Disposition of the type described in this Section 2.05(b)(ii), at the election of the Borrower clause (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date a) of such Disposition)definition, and so long as no Default shall have occurred and be continuingcontinuing and such casualty occurs prior to November 17, such Loan Party or such Subsidiary may reinvest 2026, all or any portion of such Net Cash Proceeds shall not be required to be 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 operating assets so long as restoration or repair of the applicable loss, destruction or damage of such Collateral within 365 180 days after the receipt of such Net Cash Proceeds (or or, if a commitment for such reinvestment has been made within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds 180 day period, within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 360 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receiptNet Cash Proceeds); and provided, further, however, provided that any cash proceeds if such Net Cash Proceeds shall have not been so applied reinvested shall be immediately applied to prepay the Committed Loans.
(ii) The Company shall prepay the Committed Loans in connection with a Property Substitution or Prepayment Release in the amounts, and to the extent required, pursuant to Section 2.19.
(iii) If for any 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.
(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 definition of “Initial Appraised Value”, the 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 Loans as set forth 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 this Section 2.05(b)(iv)effect at such time.
(v) Each prepayment of Loans pursuant to clauses (i) and (iv) of this Section 2.05(b) shall be applied, first, ratably to the foregoing provisions remaining principal repayment installments of the Term Loans and, if applicable, the Incremental Term Loan (in each case, including any payment due on the Maturity Date) in inverse order of maturity, and second, to outstanding Revolving Loans (with a corresponding reduction of the Revolving Commitments in such amount, regardless of the amount 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, including any payment due on the Maturity Date) on a pro rata basis, and second, to outstanding Revolving Loans (with a corresponding reduction of the Revolving Commitments in such amount, regardless of the amount of Revolving Loans outstanding at such time). Each prepayment of Loans pursuant to clause (iii) of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term repay such excess Revolving Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of . All prepayments under this Section 2.05(b)) shall be subject to Section 3.06, but otherwise without premium or penalty, and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to accompanied by interest on the L/C Borrowings and principal amount prepaid through the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case date of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableprepayment.
Appears in 2 contracts
Sources: Credit Agreement (Sonic Automotive Inc), Credit Agreement (Sonic Automotive Inc)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), If the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections Section 7.05(a) – (h), 7.05(b(j), (k) or 7.05(c(l)) 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 immediately upon within three Business Days after receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within three Business Days after the date of such Disposition), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (Proceeds, such reinvestment shall have been consummated or within 545 days if the applicable Loan Party has Borrower or such Restricted Subsidiary shall have entered into a binding contract agreement for such reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(ivii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Restricted Subsidiaries, and not otherwise included in clause (ii), (iii) or (ivi) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within 3 Business Days after receipt thereof by such Loan Party the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viiix) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within 3 Business Days after the date of receipt of such insurance proceeds, condemnation awards or indemnity paymentsNet Cash Proceeds), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Restricted Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace replace, rebuild, restore or repair the equipment, fixed assets or real property in respect of which such cash proceeds Net Cash Proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)received; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(v).
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility and Facility, to the next four scheduled principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)maturity, and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, pro rata, to the Revolving Credit Facility in the manner set forth in clause (vii) of this remaining amortization installments pursuant to Section 2.05(b2.07(a), and third, to Cash Collateralize outstanding Letters of Credit.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), ) or (iv) of ii),of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(iii). 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.
Appears in 2 contracts
Sources: Credit Agreement (TopBuild Corp), Credit Agreement (TopBuild Corp)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) The Term A Commitments shall automatically terminate in whole on the Term A Facility Termination Date and all Advances made thereunder shall be repaid in full, no later than the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment fifth anniversary of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) belowTerm A Draw Date.
(ii) If any Loan Party On the date of the Term B Borrowing, after giving effect to such Term B Borrowing, and from time to time thereafter upon each repayment or any prepayment of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash ProceedsTerm B Advances, the Borrower aggregate Term B Commitments of the Term B Lenders shall prepay be automatically and permanently reduced, on a pro rata basis, by an amount equal to the amount by which the aggregate Term B Commitments immediately prior to such reduction exceed the aggregate unpaid principal amount of Loans 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 (vii) below)the Term B Advances then outstanding; providedPROVIDED, howeverHOWEVER, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at that the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition)Term B Commitments shall terminate, and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, Advances made thereunder shall be immediately applied to the prepayment of the Loans as set forth repaid in this Section 2.05(b)(ii)full, no later than December 31, 2005.
(iii) Upon any Debt Issuance, On and after the Borrower date that all Term A Advances and Term B Advances shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt have been repaid in full the Revolving Credit Facility shall be automatically and permanently reduced on each date on which prepayment thereof by such Loan Party or such Subsidiary (such prepayments is required to be applied as set forth in clauses (v) and (vii) belowmade pursuant to Section 2.6(b)(i).
(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 (ii), (iii) or (iv) of this Section 2.05(b), the Borrower shall prepay in an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the applicable Reduction Amount, PROVIDED that each such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election reduction of the Borrower Revolving Credit Facility shall be made ratably among the Revolving Credit Lenders in accordance with their Revolving Credit Commitments.
(pursuant iv) The Letter of Credit Facility shall be permanently reduced from time to a notice in writing by the Borrower to the Administrative Agent time on or prior to the date of receipt of such insurance proceedseach reduction in the Revolving Credit Facility by the amount, condemnation awards or indemnity payments)if any, and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after by which the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment amount of the Loans as set forth in this Section 2.05(b)(iv)Letter of Credit Facility exceeds the Revolving Credit Facility after giving effect to such reduction of the Revolving Credit Facility.
(v) Each prepayment of Loans pursuant to In the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among event the Closing Date Term Loans shall not have occurred by October 30, 1998, then all of the Commitments shall be automatically terminated and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to this Agreement shall be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Creditno further force or effect.
(vi) If for any reason Notwithstanding the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) foregoing in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause clauses (i), (ii), (iii), or (iv) and (v) of this Section 2.05(b2.5(b), in the amount remainingevent the Term A Borrowing is not consummated on or prior to the Term A Facility Termination Date other than by reason of the breach, if any, after the prepayment in full by any Lender(s) of its obligation hereunder to make its Term A Advance), then all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by Commitments shall automatically and immediately terminate and all the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral outstanding Advances shall be applied payable in accordance with clause (without any further action by or notice to or from the Borrower or any other Loan Partyix) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableof Section 2.6(b).
Appears in 1 contract
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and The Company shall, on the related Compliance Certificate has been delivered pursuant to Section 6.02(a)90th day following the end of each Fiscal Year, the Borrower shall prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings in an amount equal to (A) to the extent that the Total Leverage Ratio exceeds 4.00:1.00, 75% and (B) to the extent that the Total Leverage Ratio is less than 4.00:1.00 but is greater than 3.00:1.00, 50% of the amount, in the case of any payments made in any year after 1999, of Excess Cash Flow Percentage for such Fiscal Year and, in the case of any payment made in 1999, of Excess Cash Flow for the applicable Excess Cash Flow Period less period from April 13, 1998 through the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment end of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment)Fiscal Year ending December 31, 1998. Each such prepayments to prepayment shall be applied as set forth in clauses (v) and clause (vii) below.
(iiA) If any Loan Party The Company shall, on the date that is 270 days after the date of receipt of the Net Cash Proceeds by the Company or any of its Subsidiaries Disposes from the sale, lease, transfer or other disposition of any property assets of the Company or any of its Subsidiaries (other than (x) any Disposition sale, lease, transfer or other disposition of assets pursuant to any property permitted by Sections 7.05(a), 7.05(bclause of Section 5.02(e) other than clause (iii) thereof or 7.05(c)(y) which results in the realization by such Person an aggregate amount of Net Cash ProceedsProceeds less than $2,500,000 in any Fiscal Year of the Company), the Borrower shall prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings in an amount 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 (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any that portion of such Net Cash Proceeds that has not been reinvested in operating assets so long as within 365 days after the receipt business of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); Company and provided further, however, that any Net Cash Proceeds not subject its Subsidiaries prior to such definitive agreement or so reinvested in each case as set forth herein above, 270th day. Each such prepayment shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) below.
(B) The Company shall, on the date of this receipt of the Net Cash Proceeds by the Company or any of its Subsidiaries from the sale, lease, transfer or other disposition of any assets of the Company or any of its Subsidiaries pursuant to Section 2.05(b5.02(e)(viii), prepay an aggregate principal amount of Advances comprising part of the same Borrowings in an amount equal to such Net Cash Proceeds. Each such prepayment shall be applied as set forth in clause (vii) below.
(C) The Company shall, on the date of receipt of the Net Cash Proceeds by the Company or any of its Subsidiaries (x) from the sale or issuance of Subordinated Debt or (y) the receipt of any capital contribution from WHX Corporation or any of its Subsidiaries or from the sale or issuance of any equity securities permitted by Section 5.02(g)(iii), prepay an aggregate principal amount of Advances comprising part of the same Borrowings in an amount equal to such Net Cash Proceeds. Each such prepayment shall be applied as set forth in clause (vii) below.
(iii) The Company shall, on the date of receipt of the Net Cash Proceeds by the Company or any of its Subsidiaries from the incurrence or issuance by the Company 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 as set forth in clause (vii) below.
(iv) The Company 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 thirdthe 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, to Cash Collateralize (y) the Letter of Credit Advances and (z) the Swing Line Advances then outstanding plus the aggregate Available Amount of all Letters of CreditCredit then outstanding exceeds (B) the lesser of the Revolving Credit Facility and the excess of (1) the sum of the Loan Values of the Eligible Collateral over (2) the amount referred to in clause (v)(A) below on such Business Day.
(v) The Foreign Borrowers shall, on each Business Day, prepay an aggregate principal amount of the Multicurrency Advances comprising part of the same Borrowings equal to the amount by which (A) the sum of (x) the aggregate principal amount of the Multicurrency Advances and (y) the aggregate Face Amount of Bankers' Acceptances then outstanding exceeds (B) the lesser of the Multicurrency Facility and the excess of (1) the sum of the Loan Values of the Eligible Collateral over (2) the amount referred to in clause (iv)(A) above on such Business Day.
(vi) If The Company shall, on each Business Day, pay to the Administrative Agent for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize deposit in the L/C Obligations (other than Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in such L/C Borrowings) in an Cash Collateral Account to equal the amount by which the aggregate amount equal to Available Amount of all Letters of Credit then outstanding exceeds the Letter of Credit Facility on such excessBusiness Day.
(vii) (A) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause clauses (i), (iiii)(A), (ii)(B) and (iii)) above shall be applied as follows: first, or (iv) of this Section 2.05(b)ratably to the Term A Facility, the amount remainingTerm B Facility and, if anyon and after the Conversion Date, the Delayed Draw Facility, in each case ratably to the principal installments thereof, and second, to the extent that no Term A Advances, Term B Advances or, after the prepayment in full of all L/C BorrowingsConversion Date, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash CollateralizedDelayed Draw Advances remain outstanding, the funds held as Cash Collateral shall be applied (without any further action by or notice permanently to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or reduce the Revolving Credit LendersFacility and, prior to the Conversion Date, the Delayed Draw Facility as set forth in clause (viii) or (ix) below, as applicable.
Appears in 1 contract
Sources: Credit Agreement (WHX Corp)
Mandatory. (i) Within If any Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in excess of $250,000 individually or on a cumulative basis in any fiscal year of Credit Parties, then (x) Borrower Representative shall promptly notify the Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by such Credit Party or such Subsidiary in respect thereof) and (y) promptly (and in any event within five (5) Business Days) upon receipt by any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds in excess of $250,000; provided that in the case of each Disposition and Event of Loss, if Borrower Representative states in its notice of such event that the applicable Credit Party or Subsidiary intends to invest or reinvest, as applicable, within one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default then exists, Borrowers shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are either (x) actually invested or reinvested or (y) committed to be invested or reinvested, in each case as described in Borrower Representative’s notice with such 180-day period. Promptly after the end of such 180-day period, Borrower Representative shall notify the Agent whether such Credit Party or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in Borrower Representative’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the outstanding Term Loans until paid in full (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction in Revolving Credit Commitments) the Revolving Loans, Swing Loans, Reimbursement Obligations.
(ii) If after the Second Restatement Closing Date any Credit Party or any Subsidiary shall issue any new equity securities (other than (a) equity securities issued in connection with the exercise of employee stock options, (b) equity securities issued in connection with the exercise of the Cure Right, (c) equity securities issued by a Subsidiary to another Credit Party, (d) equity securities sold to management and/or any employees of any Credit Party or any Subsidiary or (e) equity securities issued in connection with any capital contributions by Holdings or incur or assume any Indebtedness (other than that permitted by Section 6.11 hereof), then in each such case Borrower Representative shall promptly notify the Agent of the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received by or for the account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within five (5) Business Days) upon receipt by such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the outstanding Term Loans until paid in full (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction in Revolving Credit Commitments) the Revolving Loans, Swing Loans and Reimbursement Obligations. Each Credit Party acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) No later than five (5) Business Days after the earlier of (a) receipt by Agent of the audited financial statements have been delivered pursuant to required by Section 6.01(a6.1(c) hereof and (b) the related Compliance Certificate has been delivered pursuant to due date of the delivery of the audited financial statements required by Section 6.02(a)6.1(c) hereof, beginning with the Borrower fiscal year ending June 30, 2017, Borrowers shall prepay the then-outstanding Loans by an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage 50% of Excess Cash Flow of Credit Parties and their Subsidiaries for the applicable Excess Cash Flow Period less the aggregate principal amount most recently completed fiscal year of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Parties; provided, however, that with respect if the Senior Leverage Ratio (determined as of the last day of any applicable fiscal year by reference to any proceeds the financial statements delivered pursuant to Section 6.1(c) for such fiscal year) is less than 1.00:1.00, Borrowers shall not be required to make a prepayment of insurance, condemnation awards Excess Cash Flow for such fiscal year. The amount of each such prepayment shall be applied first to the outstanding Term Loan until paid in full (or applied on a pro rata basis over the remaining principal amortization payments in lieu thereof) or indemnity paymentsand then to the Revolving Loans until paid in full, at and, then to (in the election order determined by Agent but without a reduction in Revolving Credit Commitments) any Overadvances, Swing Loans, Reimbursement Obligations, without any reduction in commitments. Any voluntary prepayments of principal of the Borrower (pursuant Term Loans and, solely to the extent accompanied by a notice in writing permanent reduction on commitments, the Revolving Loans, made during any year shall reduce, by the Borrower amount of such voluntary prepayments, the amount required to be paid by Borrowers under this Section 2.8(b)(iii) during the year immediately subsequent to the Administrative Agent on or prior year such voluntary prepayments were made; provided that, the amount required to be paid under this Section 2.8(b)(iii) shall not in any event be reduced to less than zero, and no such voluntary prepayments shall reduce payments required to be made under this Section 2.8(b)(iii) in any year following the year immediately subsequent to the date of receipt of year such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds voluntary payments were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)made.
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(bBorrowers shall, (A) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Commitments are reduced pursuant to Section 2.05(b)2.10, and thirdprepay any Overadvances, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Loans, Reimbursement Obligations and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the amount of the aggregate Revolving Credit Exposures of all Lenders then outstanding to the amount of the Revolving Credit Commitments or the amounts to which the Revolving Credit Commitments have been so reduced and (other than B) on each date the aggregate amount of Revolving Credit Exposures of all Lenders then outstanding exceeds the lesser of (x) the Revolving Loan Limit as determined based on the most recent Compliance Certificate (plus any Overadvances pursuant to Section 2.11(b)) and (y) the total Revolving Credit Commitments, prepay the Revolving Loans, Swing Loans, Reimbursement Obligations and, if necessary, Cash Collateralize the L/C Borrowings) Obligations and repay any Overadvances then due and payable pursuant to Section 2.11(b), in an aggregate amount equal to such excess.
(viiv) Prepayments Borrowers shall pay to the Agent when and as received by Borrowers and as a mandatory prepayment of the Obligations, a sum equal to the Cure Amount determined in accordance with Credit Parties’ exercise of Cure Rights pursuant to and in accordance with Section 7.7 hereof. The prepayment shall be applied unless otherwise agreed by the Agent (x) 100% of such Cure Amount first to any outstanding Overadvances, then to the Term Loan, ratably, each such ratable amount to be applied against the remaining installments of principal of the Term Loan in the inverse order of their maturities, and thereafter to repay outstanding principal of the Revolving Loans (without a concomitant reduction in the Revolving Credit Facility made pursuant to Commitments), and (y) if no Overandvances are outstanding and if the Term Loan, and Revolving Loans are paid in full, thereafter against the other Obligations, in such order as the Agent determines.
(vi) Unless Borrower Representative otherwise directs, prepayments of Loans under this Section 2.05(b), first, 2.8(b) shall be applied ratably first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the L/C Borrowings and the Swing Line Loans, second, order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be applied ratably made by the payment of the principal amount to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; prepaid and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowingsany Term Loans, Swing Line Loans and Revolving Credit Loans outstanding at such time and or Eurodollar Loans, accrued interest thereon to the Cash Collateralization date of prepayment together with any amounts due the remaining Lenders under Section 8.1. Each prefunding of L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablemade in accordance with Section 7.4.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) Within five If (5A) 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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Company or any of its Subsidiaries Disposes of any property (Collateral other than (x) Dispositions under Section 7.24(i) or Section 7.24(ii), (y) any Disposition of any property permitted by Sections 7.05(aEquity Interests in a Restricted Subsidiary that hold only Excluded Assets or (z) as a result of the consummation of the Spin-Off (a “Mandatory Prepayment Disposition”), 7.05(bor (B) the Company or 7.05(c)) any of its Restricted Subsidiaries suffers an Event of Loss, which results in each case, together with all other Mandatory Prepayment Dispositions made and Events of Loss suffered at any time since the Closing Date, result in the realization by such Person the Loan Parties, collectively, of Net Cash ProceedsProceeds from Mandatory Prepayment Dispositions and Events of Loss in an aggregate amount in excess of $75,000,000 (for the avoidance of doubt, excluding any Net Cash Proceeds excluded under the preceding subclause (i)(A)(x)), the Borrower Company shall prepay in each case prepay, within three Business Days after receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person Proceeds; provided that (such prepayments to be applied as set forth in clauses (vx) and (vii) below); provided, however, that, with respect to all or a portion of any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i)(A), at the election of the Borrower Company (pursuant to a notice in writing as notified by the Borrower Company to the Administrative Agent on or prior to the date such third Business Day following receipt of such DispositionNet Cash Proceeds of Dispositions of Collateral), and so long as no Default shall have occurred and be continuing, such Loan Party the Company or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds arising from such Disposition in operating assets so long as which constitute Collateral within 365 days after the receipt of such Net Cash Proceeds and (y) with respect to any Net Cash Proceeds of casualty insurance or within 545 days if condemnation awards realized due to an Event of Loss described in this Section 2.05(b)(i)(B), at the applicable Loan Party has entered into a binding contract for reinvestment election of the Company (as notified by the Company to the Administrative Agent on or prior to such third Business Day following receipt of such Net Cash Proceeds of casualty insurance or condemnation awards), and so long as no Default shall have occurred and be continuing, the Company or such Subsidiary may apply within 365 days (or, if such replacement or repair could not reasonably completed within 365 days, such period shall be extended for a reasonable period of time to permit completion of such Disposition), such purchase shall have been consummated (replacement and repair so long as certified the replacement or repair of the asset or assets that suffered the Event of Loss is being diligently pursued by the Borrower Company or such Subsidiary) after the receipt of such Net Cash Proceeds to replace or repair the equipment, fixed assets or real property in writing to the Administrative Agent)respect of which such Net Cash Proceeds were received; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)Loans.
(iiiii) Upon the incurrence or issuance by the Company or any Debt Issuanceof its Restricted Subsidiaries of any Indebtedness (other than Indebtedness permitted under Section 7.14), the Borrower Company shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party the Company or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Restricted Subsidiary.
(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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower Company 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.
(viiiv) If the Spin-Off is not consummated within 60 days following the Closing Date on terms consistent in all material respects with the information contained in the MSG Form 10, the Company shall on such date prepay in full all Obligations in respect of the Initial Term Facility.
(v) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, except to the extent that the Incremental Term Lenders under an Incremental Term Facility have otherwise agreed, shall be applied ratably to the outstanding Loans under the Initial Term Facility and each Incremental Term Facility, if any, second, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, secondthird, except to the extent that the Incremental Revolving Lenders under an Incremental Revolving Credit Facility have otherwise agreed, shall be applied ratably to the outstanding Loans under the Initial Revolving Credit LoansFacility and each Incremental Revolving Credit Facility, if any, and, thirdfourth, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or ) through (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower Company for use in the ordinary course of its business, and the Revolving Credit Facility and any Incremental Revolving Credit Facility shall be automatically and permanently reduced on a pro rata basis by the Reduction Amount as set forth in Section 2.06(b)(i). 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 Company or any other Loan Party) to reimburse the L/C Issuer Issuers or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property or assets (other than any Disposition of any property permitted by Sections Section 7.05(a), 7.05(b) or 7.05(cthrough Section 7.05(i)) which results in the realization by such Person of Net Cash ProceedsProceeds or such Loan Party receives Net Cash Proceeds from insurance or condemnation proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds in excess of $250,000 per occurrence or $1,000,000 (in the aggregate for such Net Cash Proceeds during the term of this Agreement) upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds described in this Section 2.05(b)(i), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such Disposition or receipt of insurance or condemnation proceeds), and so long as no Event of Default shall have occurred and be continuing, such Loan Party may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business so long as within 180 days (or within 365 days if the applicable Loan Party has entered into a binding contract for reinvestment within 180 days of receipt of such proceeds) after the receipt of such Net Cash Proceeds, such purchase shall have been consummated (in each case, as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any such Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(i) Upon the incurrence or issuance by any Loan Party of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(ii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party, and not otherwise included in clause (i) or (ii) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom in excess of $250,000 per occurrence or $1,000,000 (in the aggregate for such Net Cash Proceeds during the term of this Agreement) immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(iii), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such DispositionNet Cash Proceeds), and so long as no Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business so long as within 365 180 days after the receipt of such Net Cash Proceeds (or within 545 365 days if the applicable Loan Party has entered into a binding contract for reinvestment within 180 days of receipt of such proceeds) after the receipt of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase shall have been consummated (in each case, as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any such Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.05(b)(iii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)[Intentionally omitted].
(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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Loan Facility (and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-pro rata basis among the Closing Date Term Loans basis) and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, second to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b) (without a reduction of the aggregate commitments thereunder). Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be (A) accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 and third, (B) paid to Cash Collateralize outstanding Letters the Lenders in accordance with their respective Applicable Percentages in respect of Crediteach of the relevant Facilities.
(viv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(vii) Amounts to be applied as provided in this Section 2.05(b) to the prepayment of Loans of any Class shall be applied first to reduce outstanding Base Rate Loans of such Class. Any amounts remaining after each such application shall, at the option of the Borrower, be applied to prepay Eurodollar Rate Loans of such Class immediately and/or shall be deposited in a separate Prepayment Account for the Loans of such Class. The Administrative Agent shall apply any cash deposited in the Prepayment Account for any Class of Loans to prepay Eurodollar Rate Loans of such Class on the last day of their respective Interest Periods (or, at the direction of the Borrower, on any earlier date) until all outstanding Loans of such Class have been prepaid or until all the allocable cash on deposit in the Prepayment Account for such Class has been exhausted. For purposes of this Agreement, the term “Prepayment Account” for any Class of Loans shall mean an account established by the Borrower with the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this Section 2.05(b). The Prepayment Accounts shall not bear interest. If the maturity of the Loans has been accelerated pursuant Section 8.02, the Administrative Agent may, in its sole discretion, apply such funds to satisfy any of the Obligations in accordance with Section 8.03. The Borrower hereby pledges and assigns to the Administrative Agent, for the benefit of the Secured Parties and to secure the Obligations, each Prepayment Account so established.
Appears in 1 contract
Sources: Credit Agreement (Einstein Noah Restaurant Group Inc)
Mandatory. (i) Within five (5) Business Days after The Borrower shall, no later than the 30th day following the date on which the financial statements referred to in Section 5.03(d) have been delivered pursuant to Section 6.01(a) the Lender Parties for the Fiscal Year ended 1998 and for each Fiscal Year thereafter (but in any event within 120 days after the related Compliance Certificate has been delivered pursuant to Section 6.02(aend of each such Fiscal Year), the Borrower shall prepay an aggregate principal amount of Loans the Revolving Credit Advances comprising part of the same Borrowings equal to 50% of the Excess Cash Flow Percentage amount of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount such Fiscal Year. Each such prepayment of all Loans prepaid pursuant any Advances shall be applied to Section 2.05(a)(i) (provided that any such payment of prepay and to permanently reduce the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) belowFacility.
(ii) If any Loan Party The Borrower shall, within ten days after receipt of the Net Cash Proceeds by the Borrower or any of its Subsidiaries Disposes Subsidiary from (A) the sale, lease, transfer or other disposition of any property assets (other than any Disposition of any obsolete or worn out property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results Inventory in the realization by such Person ordinary course of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans 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 (vbusiness and consistent with past practices) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower or such Subsidiary, (pursuant to a notice in writing B) the incurrence or issuance 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, such Loan Party or such Subsidiary may reinvest all of any Debt (other than Debt incurred or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Dispositionissued pursuant to Section 5.02(b)), such purchase shall have been consummated or (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iiiC) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Subsidiaries, such Subsidiary and not otherwise included in clause (ii), (iiiA) or (ivB) of this Section 2.05(b)above, the Borrower shall prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings equal to 100% the amount of all such Net Cash Proceeds. Notwithstanding the foregoing, with respect to any insurance proceeds received pursuant to Section 2.06(b)(ii)(C) to the extent that any such insurance proceeds are not so applied ("Unapplied Proceeds") within twelve months after the occurrence of any damage or loss, the Borrower shall within 10 days of such twelve month period prepay an aggregate principal amount of the Advances comprising part of the same Borrowings equal to the aggregate amount of the Unapplied Proceeds. Each such prepayment of any Advances shall be applied to prepay the Revolving Credit Facility and to permanently reduce the Revolving Credit Facility as set forth in Section 2.05(b)(i).
(iii) The Borrower shall, on the date of receipt of the Net Cash Proceeds by any Subsidiary from the sale or issuance by the Borrower or any Subsidiary of any capital stock or other ownerships 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 received therefrom immediately upon receipt thereof by such Loan Party or paid to or for the account of the Borrower or such Subsidiary and not otherwise applied under this Section 2.06(b), apply such Net Cash Proceeds to prepay and to permanently reduce the Revolving Credit Facility.
(iv) The Borrower shall, on each Business Day, prepay an aggregate principal amount of the Revolving Credit Advances comprising part of the same Borrowings and the Letter of Credit Advances equal to the amount by which (A) the sum of aggregate principal amount of (x) of the Revolving Credit Advances and (y) the Letter of Credit Advances then outstanding plus the Available Amount of Letters of Credit then outstanding exceeds the Revolving Credit Facility. Each such prepayments to prepayment shall be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.06(c).
(v) Each prepayment of Loans pursuant to the foregoing provisions of All prepayments under this Section 2.05(b2.06(b) shall be applied in the following order, first, made together with accrued interest to the Term Facility and to date of such prepayment on the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Creditamount prepaid.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied Upon receipt by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its --------- Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash ProceedsProceeds from any Asset Disposition, the Borrower shall prepay the then outstanding Advances in an aggregate principal amount of Loans equal to one-hundred percent (100% %) of such Net Cash Proceeds immediately upon receipt thereof payable concurrently with consummation of such Asset Disposition; provided that no such prepayment need be made (1) unless the -------- Net Proceeds from any single Asset Disposition or series of related Asset Dispositions exceed $100,000 (in which case a prepayment shall be made in the amount of the entire Asset Disposition) or until the cumulative Net Proceeds from all Asset Dispositions by such Person the Borrower in any particular fiscal year exceed $100,000 (such prepayments in which case a prepayment shall be made in the amount of the Net Proceeds from the specific Asset Disposition (or portion thereof) causing the limit to be applied as set forth exceeded), except that the terms of this Section shall not be applicable with respect to Asset Dispositions by the Borrower or any Subsidiary if the Net Proceeds therefrom are reinvested in clauses fixed assets (v) and (vii) below); provided, however, thatfor use in its business or, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii)the Borrower, at the election business of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as Subsidiaries) within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 180 days of such Asset Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any such Net Cash Proceeds -------- not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied used to prepay the prepayment of Advances on the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)181st day; provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of Net Proceeds from the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such timeOrpington -------- ------- Sale/Leaseback, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize have twenty-four (24) months from the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments closing of the Revolving Credit Facility made pursuant Orpington Sale/Leaseback to this Section 2.05(breinvest such Net Proceeds in fixed assets (for use in its business), firstprovided, shall be applied ratably to that, if such Net Proceeds from the L-------- Orpington Sale/C Borrowings and the Swing Line LoansLeaseback are not so reinvested within such twenty-four (24) month period, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, any such Net Proceeds not so reinvested shall be used to Cash Collateralize prepay the remaining L/C Obligations; and, in Advances on the case of prepayments Business Day immediately succeeding the second anniversary of the Revolving Credit Facility required closing of the Orpington Sale/Leaseback.
(ii) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds from any Equity Issuance, the Borrower shall prepay the then outstanding Advances in an amount equal to one hundred percent (100%) of such Net Cash Proceeds payable concurrently with consummation of such issuance.
(iii) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds from the sale or issuance by the Borrower or any of its Subsidiaries of any Debt (other than Debt permitted to be incurred under Section 7.02), the Borrower shall prepay the then outstanding Advances in an amount equal to one hundred percent (100%) of such Net Cash Proceeds payable concurrently with consummation of such sale or issuance.
(iv) Each prepayment made pursuant to clause (i), (ii), or (iii)) shall be applied to prepay the Facilities in the following manner: first, or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment to ----- prepay Revolving Advances then outstanding until such Revolving Advances are paid in full of all L/C Borrowingsand second, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any to prepay Letter of Credit that has been Cash CollateralizedAdvances then outstanding ------ until such Advances are paid in full.
(v) The Borrower shall, within fifteen (15) days following the funds held as Cash Collateral shall be applied (without any further action by or notice end of each month in each Fiscal Year, pay to or from the Borrower or any other Loan Party) to reimburse Administrative Agent for deposit in the L/C Issuer Cash Collateral Account an amount sufficient 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.
(vi) The foregoing notwithstanding, the provisions of this subsection 2.06(b) shall not be construed to permit any Equity Issuance, Debt issuance or Asset Disposition otherwise prohibited under the Revolving Credit Lenders, as applicableterms of this Agreement.
Appears in 1 contract
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and The Borrower shall, on the related Compliance Certificate has been delivered pursuant to Section 6.02(a)90th day following the --------- end of each Fiscal Year commencing with the fiscal year ending December 31, the Borrower shall 2002, prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings and deposit an amount in the L/C Cash Collateral Account in an aggregate amount equal to the Excess Cash Flow Percentage 50% of Excess Cash Flow for such Fiscal Year. Each such prepayment shall be applied ratably first to each of the applicable Excess Cash Flow Period less Term Facilities on a pro rata basis and to the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) installments thereof pro rata (provided that any such payment prepayments of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to Tranche A Term Facility shall be applied as set forth in clauses clause (vi) below) and second to the Working Capital Facility as set forth in clause (v) below; provided, however, that any such Tranche B Term Lender or Tranche C Term Lender, as the case may be, may, to the extent that there are Tranche A Term Advances outstanding and (vii) belowUnused Tranche A Term Commitments elect to refuse such prepayment and such prepayment shall be applied to the Tranche A Term Facility as set forth above.
(iii) If any Loan Party The Borrower shall, on the date of receipt of the Net Cash Proceeds by the Borrower or any of its Subsidiaries Disposes from (A) the sale, lease, transfer or other disposition of any property assets of the Borrower or any of its Subsidiaries (other than any Disposition sale, lease, transfer or other disposition of any property permitted by Sections 7.05(a), 7.05(bassets pursuant to clause (i) or 7.05(c(ii) of Section 5.02(e)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viiB) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Subsidiaries, Subsidiaries and not otherwise included in clause (ii), (iiiA) or (ivB) of this Section 2.05(b)above, the Borrower shall prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings in an amount equal to 100% the amount of all such Net Cash Proceeds received therefrom immediately upon receipt Proceeds. Each such prepayment shall be applied ratably first to each of the Term Facilities on a pro rata basis and to the installments thereof by such Loan Party or such Subsidiary pro rata and (provided that any such prepayments to of the Tranche A Term Facility shall be applied as set forth in clauses clause (v) and (viiix) below); , and second to the Working Capital Facility as set forth in clause (vi) below, provided, however, that with respect to any proceeds of insurancesuch Tranche B Term Lender or Tranche C Term Lender may, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent extent that there are Tranche A Term Advances outstanding and Unused Tranche A Term Commitments elect to refuse such prepayment and such prepayment shall be applied to the Tranche A Term Facility as set forth above.
(ii) The Borrower shall, on or prior to the date of receipt of the Net Cash Proceeds by the Borrower or any of its Subsidiaries from (A) the issuance after the Effective Date by the Borrower or any of its Subsidiaries of any Equity Interests, (including, without limitation, receipt of any capital contribution) or (B) the incurrence or issuance after the Effective Date by the Borrower 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 (A) if the Leverage Ratio at such insurance proceedstime is greater than 10.0: 1.0, condemnation awards 75% of such Net Cash Proceeds (B) if the Leverage Ratio at such time is greater than 6.0:1.0 but is less than or indemnity paymentsequal to 10.0:1.0, 50% of such Net Cash Proceeds, (C) if the Leverage Ratio is greater than 4.0:1.0 but less than or equal to 6.0:1.0, 25% of such Net Cash Proceeds and (D) at any other time, 0% of such Net Cash Proceeds. Each such prepayment shall be applied ratably first to each of the Term Facilities on a pro rata basis and to the installments thereof pro rata and (provided that any such prepayments of the Tranche A Term Facility shall be as set forth in clause (ix) below), and so long second to the Working Capital Facility as no Default shall have occurred and be continuingset forth in clause (vi) below, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied such Tranche B Term Lender or Tranche C Term Lender, as the case may be, may, to the extent that there are Tranche A Term Advances outstanding and Unused Tranche A Term Commitments elect to refuse such prepayment and such prepayment shall be immediately applied to the prepayment of the Loans Tranche A Term Facility as set forth in this Section 2.05(b)(iv)above.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
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), If the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections Section 7.05(a) – (h), 7.05(b(j), (k) or 7.05(c(l)) which results in the realization by such Person of aggregate Net Cash ProceedsProceeds in excess of $15,000,000 in any fiscal year, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds immediately upon in excess of $15,000,000 within three Business Days after receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within three Business Days after the date of such Disposition), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (Proceeds, such reinvestment shall have been consummated or within 545 days if the applicable Loan Party has Borrower or such Restricted Subsidiary shall have entered into a binding contract agreement for such reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(ivii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Restricted Subsidiaries, and not otherwise included in clause (ii), (iii) or (ivi) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within three Business Days after receipt thereof by such Loan Party the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viiix) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within three Business Days after the date of receipt of such insurance proceeds, condemnation awards or indemnity paymentsNet Cash Proceeds), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Restricted Subsidiary may apply within have 365 days after the receipt of such cash proceeds, to apply such proceeds to replace replace, rebuild, restore or repair the equipment, fixed assets or real property in respect of which such cash proceeds Net Cash Proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)received; and provided, further, however, that any cash proceeds not so applied within such 365 day period shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(iv2.05(b)(ii).
(viii) Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility and to the next four scheduled principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)maturity, and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, pro rata, to the Revolving Credit Facility in the manner set forth in clause (vii) of this remaining amortization installments pursuant to Section 2.05(b2.07(a), and third, to Cash Collateralize outstanding Letters of Credit.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.05(b)(iv), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (TopBuild Corp)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and On any date on which the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate outstanding principal amount of Loans equal to the Excess Cash Flow Percentage Revolving Advances plus the Letter of Excess Cash Flow for Credit Exposure plus the applicable Excess Cash Flow Period less the aggregate outstanding principal amount of all Loans prepaid pursuant the Swingline Advances exceeds the aggregate Revolving Commitments, the Company agrees to Section 2.05(a)(i) (provided that any such payment make a mandatory prepayment of the Revolving Credit Loans was accompanied by a permanent reduction Advances in the Revolving Credit Commitment), amount of such prepayments to be applied as set forth in clauses (v) and (vii) belowexcess.
(ii) If The Company shall prepay the Term Advances by an amount equal to (A) (1) the amount required by Section 6.03(b)(iii) from the sale of any Loan Party assets permitted by Section 6.03 (other than sales of assets from the Company to any of its Subsidiaries or from any of its Subsidiaries to the Company or another Subsidiary of the Company), to the extent such amounts are not reinvested in accordance with Section 6.03, on the 185th day after receipt of such amount and (2) 100% of the Net Cash Proceeds the Company or any of its Subsidiaries Disposes receives from an insurance policy or condemnation award in connection with a Casualty Event occurring when an Event of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have has occurred and be continuing, such Loan Party is continuing or such Subsidiary may reinvest all in connection with a Total Loss or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after a Material Partial Loss for which the receipt of such Net Cash Proceeds (insurance proceeds or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds condemnation proceeds are not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment replacement assets of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) comparable value and (vii) 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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of utility within six months after receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days on the 185th day after the receipt of such cash proceeds Net Cash Proceeds, (B) 100% of the Net Cash Proceeds of the Hercules Title XI Issue upon receipt thereof, (C) upon the receipt thereof, 100% of the Net Cash Proceeds of any Equity Issuance, excluding any Equity Issuance in the normal course of business pursuant to replace either an employee benefit plan or repair a dividend reinvestment plan, and (D) unless the equipment, fixed assets or real property in respect Company's Leverage Ratio is less than 2.5 to 1.0 as of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days end of such receipt); and providedfiscal year, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment 75% of the Loans as set forth in this Section 2.05(b)(ivExcess Cash Flow for each fiscal year (commencing with the fiscal year ending December 31, 2000), prior to April 30 of the subsequent fiscal year.
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, 2.07(c) shall be applied ratably accompanied by accrued interest on the amount prepaid to the L/C Borrowings date of such prepayment and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remainingamounts, if any, after the required to be paid pursuant to Section 2.08 as a result of such prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at being made on such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicabledate.
Appears in 1 contract
Mandatory. (i) Within five Subject to clause (5vi) Business Days after financial statements have been delivered pursuant below and except with respect to Section 6.01(a) and ABL Priority Collateral (as defined in the related Compliance Certificate has been delivered pursuant to Section 6.02(aABL Intercreditor Agreement), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party if Holdings or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) Section 7.05 which results in the realization by such Person of Net Cash ProceedsProceeds in excess of an aggregate amount of $2,500,000 per Fiscal Year), the Borrower Borrowers shall prepay an aggregate principal amount of Loans Term Loan equal to 100% of such Net Cash Proceeds immediately upon in excess of $2,500,000 no later than five Business Days following receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower .
(pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to ii) On the date of such Dispositionreceipt by Holdings or any of its Subsidiaries of cash proceeds from a capital contribution to, or the issuance of any Capital Stock of, Holdings or any of its Subsidiaries (other than issuances of Capital Stock by a Subsidiary to Holdings and capital contributions by Holdings to a Subsidiary), and so long as no Default the Borrowers shall have occurred and be continuing, such prepay an aggregate principal amount of the Term Loan Party or such Subsidiary may reinvest all or any portion equal to 100% of such Net Cash Proceeds in operating assets so long as within 365 days after the received therefrom no later than five Business Days following receipt of thereof by such Net Cash Proceeds Person (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing prepayments to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iiclause (v) below).
(iii) Upon the incurrence or issuance by Holdings or any Debt Issuanceof its Subsidiaries of any Indebtedness after the Closing Date not permitted to be incurred or issued pursuant to Section 7.03, the Borrower Borrowers shall prepay an aggregate principal amount of Loans Term Loan equal to 100% of all Net Cash Proceeds received therefrom immediately upon no later than five Business Days following receipt thereof by such Loan Party or such Subsidiary Person (such prepayments to be applied as set forth in clauses clause (v) and (vii) below).
(iv) Upon any Extraordinary Receipt (other than those Extraordinary Receipts arising from any ABL Priority Collateral (as defined in the ABL Intercreditor Agreement)) received by or paid to or for the account of any Loan Party Holdings or any of its Subsidiaries, Subsidiaries and not otherwise included in clause (iii), (iiiii) or (iviii) of this Section 2.05(b2.03(b), the Borrower Borrowers shall prepay an aggregate principal amount of Loans Term Loan equal to 100% of all Net Cash Proceeds received therefrom immediately upon in excess of the greater of $2,500,000 per Fiscal Year no later than five Business Days following receipt thereof by such Loan Party or such Subsidiary Person (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each Any prepayment of Loans the Term Loan pursuant to the foregoing provisions of this Section 2.05(b2.03(b) shall be applied in accompanied by all accrued interest on the following orderamount prepaid, first, together with any additional amounts required pursuant to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit3.05.
(vi) If for Notwithstanding any reason other provisions of this Section 2.03,
(1) to the Total Revolving Credit Outstandings extent that any of or all the Net Cash Proceeds of any Disposition by or Extraordinary Receipt of, a Foreign Subsidiary prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Term Loan at the times provided in this Section 2.03 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, will not permit repatriation to the United States (Holdings hereby agreeing to use commercially reasonably efforts to otherwise cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by the applicable local law to permit such repatriation), and once such repatriation of any time exceed of such affected Net Cash Proceeds that, in each case, would otherwise be required to be used to prepay the Revolving Credit Facility Term Loan pursuant to Section 2.03(b)(i) or (iv), is permitted under the applicable local law, even if such cash is not actually repatriated at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
repatriated (viior permitted to be repatriated) Prepayments Net Cash Proceeds will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Revolving Credit Facility made Term Loan pursuant to this Section 2.05(b), first, shall be applied ratably 2.03;
(2) to the L/C Borrowings and extent that Borrowers have determined in good faith that repatriation of any of or all the Swing Line LoansNet Cash Proceeds of any Disposition or Extraordinary Receipt by any Foreign Subsidiary would have material adverse tax cost consequence (as determined by Borrowers) with respect to such Net Cash Proceeds, second, shall such Net Cash Proceeds so affected may be applied ratably to retained by the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligationsapplicable Foreign Subsidiary; andprovided that, in the case of this clause, on or before the date on which any such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments of the Revolving Credit Facility required pursuant to clause (iSection 2.03(b), Borrowers may apply an amount equal to such Net Cash Proceeds to such reinvestments or prepayments, as applicable, as if such Net Cash Proceeds had been received by Borrowers rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds had been repatriated (iior, if less, the Net Cash Proceeds that would be calculated if received by such Foreign Subsidiary); and
(3) to the extent that any of or all the Net Cash Proceeds of any Disposition by or Extraordinary Receipt of a Subsidiary is prohibited or delayed by restrictions in such Subsidiary’s Organization Documents, (iii), or (iv) the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Term Loan at the times provided in this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full 2.03 but may be retained by the Borrower for use in applicable Subsidiary so long, but only so long, as the ordinary course of its business. Upon applicable Organization Documents will not permit such repayment (Holdings hereby agreeing to cause the drawing applicable Subsidiary to promptly take all actions reasonably required by such Organization Document to permit such repayment), and once such repayment of any Letter of Credit that has been such affected Net Cash CollateralizedProceeds that, in each case, would otherwise be required to be used to make an offer of prepayment pursuant to Section 2.03(b)(i) or (iv), is permitted under the funds held as applicable Organization Document such repayment will be immediately effected; and even if such cash is not actually repatriated at such time, an amount equal to such Net Cash Collateral shall Proceeds will be promptly (and in any event not later than five Business Days after such repayment becomes possible) applied (without net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loan pursuant to this Section 2.03. For the avoidance of doubt, nothing within this Section 2.03(b)(vi) shall require any further action by Loan Party to cause any amounts to be repatriated to the United States (whether or notice to not such amounts are used in or excluded from the Borrower or determination of the amount of any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablemandatory prepayments hereunder).
Appears in 1 contract
Sources: Debtor in Possession Term Loan Agreement (EveryWare Global, Inc.)
Mandatory. (i) Within five At any time any Term Loans (5including under any Incremental Term Facility) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and are outstanding, if the Borrower or any of its Restricted Subsidiaries receives Net Cash Proceeds in excess of $5,000,000 from any Asset Disposition or any Recovery Event (or series of related Compliance Certificate has been delivered pursuant to Section 6.02(aAsset Dispositions or Recovery Events), the Borrower shall shall, subject to clause (iii) below, prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon within two (2) Business Days following receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viii) and (vii) below); provided, however, that, that with respect to any Net Cash Proceeds realized under a received from an Asset Disposition or Recovery Event described in this Section 2.05(b)(ii2.05(b)(i), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition)Borrower, and so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such the applicable Restricted Subsidiary (or any combination of the foregoing) may reinvest all or any portion of such Net Cash Proceeds if such reinvestment complies with the following requirements: (w) the Borrower shall deliver to the Administrative Agent within one (1) Business Day of the date of its receipt of Net Cash Proceeds from such Disposition a certificate of a Responsible Officer to the effect that the Borrower and/or any such Restricted Subsidiary intends to reinvest all or any portion of such Net Cash Proceeds in accordance with this Section 2.05(b), (x) the Borrower or the applicable Restricted Subsidiary (or any combination of the foregoing) shall reinvest such Net Cash Proceeds to acquire operating assets (including the construction of any such assets and the Acquisition of all of the Equity Interests in one or more Persons owning or constructing any such assets) or to improve, enlarge, develop, re-construct or repair the affected asset, or any combination of the foregoing, in each case, so long as within 365 days after the receipt of such Net Cash Proceeds (Proceeds, such acquisition, construction, improvement or within 545 days if other reinvestment action shall have been consummated; provided, however, that in the applicable Loan Party has entered into a binding contract for reinvestment case of any Asset Disposition of, or Recovery Event with respect to, any Collateral, in the event the Borrower or such Restricted Subsidiary chooses to reinvest such Net Cash Proceeds, the Borrower or such Restricted Subsidiary, as applicable, shall reinvest such Net Cash Proceeds within 365 days in assets of the type described in clause (x) above (including the construction of such Disposition), assets and the Acquisition of all of the Equity Interests in one or more Persons owning or constructing such purchase assets) which will constitute Collateral and take all actions required by Section 6.13 with respect thereto (provided that any Equity Interests purchased with Net Cash Proceeds of Collateral pursuant to this Section 2.05(b) shall have been consummated (as certified be issued by a Person organized under the Borrower in writing to laws of any political subdivision of the Administrative AgentUnited States); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon . Pending the application of any Debt Issuancesuch Net Cash Proceeds, the Borrower may reduce outstanding Indebtedness under the Revolving Credit Loans or invest such Net Cash Proceeds in Cash Equivalents in which the Administrative Agent, for the benefit of the Secured Parties, has a perfected first priority security interest, subject only to Permitted Collateral Liens. The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.05. Notwithstanding anything contained herein to the contrary, so long as no Default under Section 8.01(a) or 8.01(f) or Event of Default shall have occurred and be continuing on the date of receipt of such proceeds, any Net Cash Proceeds received as a result of the Disposition of the Ingleside, Texas spoolbase located at ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (and ancillary equipment with respect thereto) shall not be required to be reinvested or applied as a prepayment as provided above, but may be used by the Loan Parties for general corporate purposes not in violation of any Law or breach of any Loan Document; if a Default under Section 8.01(a) or 8.01(f) or Event of Default shall have occurred and be continuing on the date of receipt of such proceeds, the Borrower must prepay an aggregate principal amount of Loans equal to 100% of all such Net Cash Proceeds received therefrom immediately upon within one (1) Business Day of receipt thereof by such Loan Party or such Subsidiary (such prepayments thereof, to be applied as set forth in pursuant to clauses (viii) and (viivi) below). With respect to any Asset Disposition or Recovery Event which will result in Net Cash Proceeds in excess of $25,000,000, the Borrower shall notify the Administrative Agent thereof on or prior to the date of the applicable Asset Disposition or promptly following the date that the Borrower has actual knowledge that a Recovery Event has occurred.
(ivii) Upon At any Extraordinary Receipt received time any Term Loans (including under any Incremental Term Facility) are outstanding, upon the incurrence or issuance by or paid to or for the account of any Loan Party Borrower or any of its Subsidiaries, Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness permitted to be incurred in accordance with Section 7.03(a) through (f) and not otherwise included in clause (iih) through (m), (iii) or (iv) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon on the next Business Day following receipt thereof by such Loan Party the Borrower or such any Restricted Subsidiary (such prepayments to be applied as set forth in clauses (viii) and (viivi) below); provided, however, that with respect . The provisions of this Section do not constitute a consent to the issuance or incurrence of any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing Indebtedness by the Borrower to the Administrative Agent on or prior to the date any of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds its Restricted Subsidiaries not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)otherwise permitted hereunder.
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, ratably to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, to the Revolving Credit Facility in the manner set forth in clause (viivi) of this Section 2.05(b).
(iv) Notwithstanding any of the other provisions of clause (i), (ii) or (iii) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and thirdbe continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (ii) or (iii) of this Section 2.05(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 thereafter on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (i), (ii) or (iii) of this Section 2.05(b) to be applied to prepay Loans exceeds $5,000,000. During such deferral period the Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Collateralize outstanding Letters Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of Credita Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Borrower shall immediately prepay the 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) (without giving effect to the first and second sentences of this clause (iv)) but which have not previously been so applied.
(v) If, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i) or (ii) of this Section 2.05(b), the Borrower may, upon prior written notice to the Administrative Agent, elect to defer such all or any portion of such required prepayment until the end of an Interest Period provided that (A) all of the applicable Net Cash Proceeds not previously applied to prepay the Loans shall be deposited in a blocked deposit account at Bank of America on or before the Business Day following receipt of such proceeds and (B) such proceeds are applied to prepay the Loans at the end of such Interest Period. The Borrower hereby grants to the Administrative Agent, for the benefit of the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. During the continuance of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Administrative Agent may, and at the direction of the Required Banks shall, prepay the Loans in the amount of all Net Cash Proceeds and proceeds thereof on deposit in, or credited to, such deposit account.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Helix Energy Solutions Group Inc)
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) Within five (5) Business Days after financial statements The Borrower shall, on the 90th day following the end of each Fiscal Year, beginning with the Fiscal Year in which the First Lien Obligations have been delivered pursuant to Section 6.01(a) paid in full and the related Compliance Certificate has First Lien Senior Credit Facilities have been delivered pursuant to Section 6.02(aterminated (provided that outstanding letters of credit under the First Lien Senior Credit Facilities shall be deemed paid when cash collateralized as provided therein), the Borrower shall prepay an aggregate principal amount of Loans the Advances in an amount equal to, (A) at any time when the Total Leverage Ratio is greater than or equal to 4.00:1.00, 75% of the Excess Cash Flow Percentage amount of Excess Cash Flow for such Fiscal Year, (B) at any time when the applicable 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 Period 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 aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(iExcess Cash Flow for such Fiscal Year and (D) (provided that at any such payment time when the Total Leverage Ratio is less than 3.00:1.00, 0% of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), amount of Excess Cash Flow for such prepayments to be applied as set forth in clauses (v) and (vii) belowFiscal Year.
(ii) If 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 Disposes of any property (other than any Disposition sale, lease, transfer or other disposition of any property permitted by Sections 7.05(aassets pursuant to clauses (i) through (viii) of Section 5.02(e)), 7.05(b(B) the incurrence or 7.05(c)) which results in the realization issuance 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all any of its Subsidiaries of any Debt (other than Debt incurred or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Dispositionissued pursuant to Section 5.02(b)), such purchase shall have been consummated (as certified by C) the Borrower in writing to the Administrative Agent); and provided furtherissuance of any class of equity, however, that (D) any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) capital contribution and (viiE) below).
(iv) Upon any Extraordinary Casualty 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 (ii), (iii) or (iv) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans the Advances in an amount equal to (x) 100% of all the amount of such Net Cash Proceeds in the case of clauses (A), (B) and (E), and (y) 50% of the amount of such Net Cash Proceeds, in the case of clauses (C) and (D). No prepayment made with Net Cash Proceeds received therefrom immediately upon receipt thereof 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 together with (A) accrued interest to the date of such Loan Party or such Subsidiary prepayment on the principal amount prepaid, (such prepayments 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 applied as set forth 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 clauses (v) and (vii) below)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 with respect such Advances shall continue to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans bear interest as set forth in this Section 2.05(b)(iv).
(v) Each prepayment 2.05 until the last day of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of CreditInterest Period therefor.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) Within five (5) The Borrower shall, within three Business Days after financial statements have been delivered pursuant to Section 6.01(a) and of the related Compliance Certificate has been delivered pursuant to Section 6.02(a), date of receipt of Net Cash Proceeds by the Borrower shall or any of its Subsidiaries, prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage Term Advances in the percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid such Net Cash Proceeds as hereinafter set forth: (A) 100% of the Net Cash Proceeds from the sale of the Identified Assets up to a maximum amount of $7.2 million, (B) 100% of the Net Cash Proceeds from the sale of other assets of the Borrower and its Subsidiaries (excluding sales of Inventory or services in the ordinary course of business but including any non-ordinary course IRUs), (C) 100% of the Net Cash Proceeds from Extraordinary Receipts, (D) 100% of the Net Cash Proceeds from the issuance of additional Debt (other than Subordinated Debt) permitted under the Loan Documents (other than Debt pursuant to Section 2.05(a)(i5.02(b)), (E) (provided that any such payment 50% of the Revolving Credit Loans was accompanied by a permanent reduction Net Cash Proceeds from the issuance of Subordinated Debt in excess of $25,000,000 (other than the Revolving Credit CommitmentSubordinated Cerberus Notes), and (F) 50% of the Net Cash Proceeds from the issuance of equity. Any such prepayment (other than one-half of the Net Cash Proceeds described in clause (B) above) shall be applied to prepay the Term Advances in inverse order of maturity and any prepayments made with the remaining one-half of the Net Cash Proceeds described in clause (B) above shall be applied to ratably prepay the remaining scheduled amortization payments for the Term Advances. For purposes hereof, non-ordinary course IRUs shall include IRUs for a term in excess of 10 years for which 75% or more of the aggregate dollar amount of lease payments are to be applied as set forth in clauses (v) and (vii) belowpaid within the first 35% of such lease term.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property All prepayments under this subsection (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(bb) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, made together with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior accrued interest to the date of such Disposition)prepayment on the principal amount prepaid. If any payment of Eurodollar Rate Advances otherwise required to be made under this Section 2.03(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 long as no Default 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 have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion apply the amount of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied payment to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Term Advances; provided, however, that with respect such Term Advances shall continue to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans bear interest as set forth in this Section 2.05(b)(iv).
(v) Each prepayment 2.04 until the last day of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in applicable Interest Period therefor. Notwithstanding the following order, firstforegoing, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments extent any such prepayments are required to be made on each Term Loan Repayment Date arising after prior to the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)Effective Date, and thereafter, on a pro-rata basis amongto the remaining payments to such prepayments shall be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)Effective Date, secondtogether with interest, to the Revolving Credit Facility in the manner as more fully set forth in clause (vii) the Plan of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of CreditReorganization.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Mandatory. If, at any time, the Total Outstandings at such time exceed the Maximum Revolving Credit, then, within one Business Day, the Borrowers shall prepay the outstanding Loans and/or the Cash Collateralize the outstanding L/C Obligations (including by depositing funds in the L/C Cash Collateral Account pursuant to Section 2.04(h)(i)) in an aggregate amount sufficient to reduce the amount of Total Outstandings as of such date of payment to an amount less than or equal to the WEIL:\98235875\14\35899.0561DOCPROPERTY DOCXDOCID DMS=IMANAGE FORMAT=<<LIB>>\<<NUM>>\<<VER>>\<<CLT>>.<<MTR>>WEIL\100652005\11\35899.0663 Maximum Revolving Credit; provided, however, that, subject to the provisions of Section 2.04(h)(ii), the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Loans the Total Outstandings exceed the Maximum Revolving Credit above at such time.
(i) Within At any time following the occurrence and during the continuation of a Liquidity Period, within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and following the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount receipt of Loans equal to the Excess any Net Cash Flow Percentage Proceeds in respect of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount any Disposition of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Collateral or any of its Subsidiaries Disposes of any property Net Insurance/Condemnation Proceeds (other than any Disposition of any property (A) permitted by Sections Section 7.05(a), 7.05(b(b), (c), (d), (h) or 7.05(c(i), or (B) which results in the realization by such Person ordinary course of Net Cash Proceedsbusiness of the Borrowers and their respective Subsidiaries), the Borrower Borrowers shall prepay apply an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied or Net Insurance/Condemnation Proceeds, as set forth in clauses (v) and (vii) below); providedapplicable, however, that, received with respect thereto to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at prepay the election outstanding principal amount of the Borrower (pursuant to a notice in writing by Loans and/or Cash Collateralize the Borrower outstanding L/C Obligations, and the Borrowers shall deliver an updated Borrowing Base Certificate to the Administrative Agent on or prior to the date of any such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party Disposition or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds Insurance/Condemnation Proceeds.
(or within 545 days if ii) Prepayments of the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such DispositionFacilities made pursuant to this Section 2.06(b), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) 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 LoansSwingline Loans or Protective Advances, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, Loans and third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in .
(iii) In the case of prepayments of the Revolving Credit Facility Facilities required pursuant to clause (i), ) or (ii), (iii), or (iv) of this Section 2.05(b2.06(b), the amount remaining, if any, after the prepayment in full of all L/C BorrowingsBorrowings and Loans, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower Borrowers for use in the ordinary course of its their business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as in the L/C Cash Collateral Account shall be applied (without any further action by or notice to or from the Borrower Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Warrior Met Coal, Inc.)
Mandatory. (i) Within five ninety (590) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and days following the related Compliance Certificate has been delivered pursuant to Section 6.02(a)end of each Fiscal Year, the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal execute and deliver to the Excess Cash Flow Percentage Administrative Agent a certificate of each Borrower's chief executive officer or chief financial officer demonstrating the Borrowers' calculation of Excess Cash Flow for such Fiscal Year along with a prepayment of the applicable then outstanding Advances equal to seventy-five percent (75%) of the Borrowers' PRO RATA share (calculated as set forth below) of Excess Cash Flow Period for such Fiscal Year; PROVIDED, HOWEVER, that (A) if the Consolidated Debt to EBITDA Ratio, measured at the end of such Fiscal Year of the Borrowers, for such Fiscal Year of the Borrowers, is less than or equal to 4.0 to 1.0, then the aggregate principal required prepayment of the then outstanding Advances shall be in the amount of all Loans prepaid pursuant to Section 2.05(a)(ififty percent (50%) (provided that any such payment of the Revolving Credit Loans was accompanied by Borrowers' PRO RATA share of the Excess Cash Flow for such Fiscal Year rather than seventy-five percent (75%) of the Borrowers' PRO RATA share of such Excess Cash Flow; (B) in respect of payments required to be made hereunder based on Excess Cash Flow for the Fiscal Year ended April 30, 1999, such Excess Cash Flow shall be computed for the two fiscal quarters ending on April 30, 1999 (in lieu of the full Fiscal Year then ended); and (C) the Borrowers may retain from Excess Cash Flow otherwise required to be used to prepay the outstanding Advances not later than July 31, 1999 (and assuming no Default or Event of Default then exists) the amount of One Million Five Hundred Thousand ($1,500,000) Dollars (reflecting the expected net decrease in accounts receivable (as a permanent reduction component in the Revolving Credit Commitmentchanges in Consolidated Current Assets)). For purposes of this subsection 2.6(b)(i), such prepayments (1) the Borrowers' PRO RATA share of Excess Cash Flow will be determined by calculating the percentage that the outstanding principal balance of the Term Loans are of the total of (A) all Term Loans outstanding to be applied as set forth in clauses the Borrowers plus (vB) all term loans outstanding to the European Borrowers under the KBC Loan Agreements and (vii2) belowin any event, Excess Cash Flow for the Foreign Subsidiaries shall be computed for the periods comprising the fiscal quarters or fiscal year of PolyVision, without regard to the existence during any relevant period of a different fiscal year end of any Foreign Subsidiary.
(ii) If Within fifteen (15) days after receipt by any Loan Party Borrower or any of its Domestic Subsidiaries Disposes of any property Net Cash Proceeds from Asset Dispositions (other than any Disposition Extraordinary Receipts the disposition of any property permitted which shall be governed by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person terms of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans 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 (viisubsection 2.6(b)(iv) below); provided, however, that, with respect the Borrowers shall prepay the then outstanding Advances in an amount equal to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower one-hundred percent (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion 100%) of such Net Cash Proceeds in operating excess of $500,000 in any Fiscal Year (such $500,000 computed on a Consolidated basis with respect to PolyVision and all of its Subsidiaries), PROVIDED that no such prepayment need be made (A) unless the Net Cash Proceeds from any single Asset Disposition or series of related Asset Dispositions exceed $500,000 (in which case a prepayment shall be made in the amount of the entire Asset Disposition) or until the cumulative Net Cash Proceeds from all Asset Dispositions by the Borrowers in any particular Fiscal Year exceed $500,000 (in which case a prepayment shall be made in the amount of the Net Cash Proceeds from the specific Asset Disposition (or portion thereof) causing the limit to be exceeded), except that the terms of this subsection (A) shall not be applicable in respect of Net Cash Proceeds reinvested in accordance with the terms of the following subsection (B); and (B) with respect to Asset Dispositions by the Borrowers or any Domestic Subsidiary, if the Net Cash Proceeds therefrom are used to reinvest in fixed assets (for use in its business or the business of the Domestic Subsidiaries) within 180 days (or 360 days with respect to real estate and improvements on real estate) of such Asset Disposition, PROVIDED that any such Net Cash Proceeds not so long as within 365 reinvested shall be used to prepay the Advances on the 181st day (or 361st day with respect to real estate and improvements on real estate).
(iii) Within fifteen (15) days after receipt by any Borrower or any of its Domestic Subsidiaries of Net Cash Proceeds from any Debt Issuance or Equity Issuance, the Borrowers shall prepay the then outstanding Advances in an amount equal to, with respect to any (A) Debt Issuance, one hundred percent (100%) and (B) Equity Issuance, seventy-five percent (75%), of such Net Cash Proceeds; PROVIDED, HOWEVER, that a Borrower may retain one hundred percent (100%) of the proceeds of any Equity Issuance (1) used as part of the consideration for a Permitted Acquisition consummated within one-hundred eighty (180) days after receipt of such Net Cash Proceeds or (2) reinvested in fixed assets (for use in its business or the business of any Borrower's Domestic Subsidiaries) within 545 one-hundred eighty (180) days if the applicable Loan Party has entered into a binding contract for reinvestment after receipt of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Proceeds.
(iv) Upon Within fifteen (15) days after receipt of Net Cash Proceeds by any Borrower or any of its Domestic Subsidiaries from any Extraordinary Receipt received by or paid to or for the account of any Loan Party Borrower or any of its Subsidiaries, Domestic Subsidiaries and not otherwise included in clause (iii), (iiiii) or (iviii) above, the Borrowers shall prepay the then outstanding Advances in an amount equal to one hundred percent (100%) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all such 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 (vii) below); provided, however, that with respect to any proceeds excess of insurance, condemnation awards (or payments $500,000 in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)aggregate.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), ) or (iv) shall be subject to the provisions of this Section 2.05(b)11.4(c) and shall be applied to prepay the Facilities in the following manner: FIRST, ratably to the amount remainingTerm A Facility and the Term B Facility and ratably to each unpaid installment of principal of each of the Term Facilities until such installments are paid in full; SECOND, if anyto prepay Letter of Credit Advances then outstanding until such Advances are paid in full; THIRD, after to prepay Swing Line Advances then outstanding until such Advances are paid in full; FOURTH, to prepay Revolving Credit Advances then outstanding until such Advances are paid in full; and FIFTH, deposited in the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization Collateral Account to cash collateralize 100% of the remaining L/C Obligations in full may be retained by Available Amount of the Borrower for use in the ordinary course Letters of its businessCredit then outstanding. Upon the drawing of under any Letter of Credit that has been Cash Collateralized, the for which 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 are on deposit in the L/C Issuer Cash Collateral Account, such funds shall be applied to reimburse the Issuing Bank or the Revolving Credit Lenders, as applicable. The amount remaining (if any) after the required prepayment of the Advances then outstanding and the 100% cash collateralization of the aggregate Available Amount of Letters of Credit then outstanding (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being referred to herein as the "REDUCTION AMOUNT") may be retained by the Borrowers. Upon the termination of all of the Commitments and the payment in full of all Obligations under the Loan Documents, including, without limitation, termination or expiration of all Letters of Credit and the indefeasible payment in full of all Obligations in respect of all Letters of Credit, then all amounts remaining on deposit in the L/C Cash Collateral Account shall be returned to the Borrowers.
(vi) The Borrowers shall, within fifteen (15) days following the end of each month in each Fiscal Year, 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 such Account to equal the amount (if any) by which the aggregate Available Amount of all Letters of Credit then outstanding exceeds the Letter of Credit Facility on such Business Day.
(vii) At any time that the aggregate principal amount of the Revolving Credit Advances, the Letter of Credit Advances and the Swing Line Advances PLUS the aggregate Available Amount of all outstanding Letters of Credit exceeds the Revolving Credit Availability, the Borrowers shall immediately repay Revolving Credit Advances to the extent necessary to eliminate such excess.
(viii) The foregoing notwithstanding, the provisions of this Section 2.6(b) shall not be construed to permit any Equity Issuance, Debt Issuance or Asset Disposition otherwise prohibited under the terms of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Polyvision Corp)
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections Section 7.05(a), 7.05(b) (b), (c), (d), or 7.05(c(g)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under in connection with a Disposition described in this Section 2.05(b)(ii2.05(b)(i), so long as no Event of Default shall have occurred and be continuing at any time during either 270 day period referred to below, at the election of the Borrower made in good faith (pursuant to a notice as notified in writing by the Borrower to the Administrative Agent on or prior to the date a mandatory prepayment of such Dispositionthe Loans would otherwise be required hereunder), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets (other than current assets) used or useful in the business of any Loan Party so long as within 365 270 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Proceeds, such Loan Party has or such Subsidiary shall have either made such reinvestment or entered into a binding contract for agreement to make such reinvestment of and, if such Net Cash Proceeds binding agreement is entered into within 365 days of such Disposition)270 day period, such purchase shall have been consummated (as certified by reinvestment actually occurs within 270 days following the Borrower in writing to the Administrative Agent)date such Loan Party or such Subsidiary entered into such binding agreement; and provided further, however, that if any Net Cash Proceeds are not subject to such definitive agreement or so reinvested in each case as set forth herein aboveaccordance with the terms hereof, the Borrower shall be immediately applied prepay an aggregate principal amount of Loans equal to 100% of such uninvested Net Cash Proceeds within two (2) Business Days following the prepayment expiration of the Loans initial 270 day period, or, if a binding agreement was entered into during such initial period, the next 270 day period (such prepayments to be applied as set forth in this Section 2.05(b)(iiclauses (vi) below).
(iiiii) Upon the incurrence or issuance by the Borrower or any Debt Issuanceof its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viivi) below).
(iviii) Upon any Extraordinary Insurance 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 clauses (ii), (iiii) or (ivii) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viivi) below); provided, however, that that, so long as no Event of Default shall have occurred and be continuing at any time during either 270 day period referred to below, with respect to any proceeds Net Cash Proceeds realized in connection with the receipt of insurance, condemnation awards (or payments Insurance Receipts described in lieu thereof) or indemnity paymentsthis Section 2.05(b)(iii), at the election of the Borrower made in good faith (pursuant to a notice as notified in writing by the Borrower to the Administrative Agent on or prior to the date a mandatory prepayment of receipt of such insurance proceeds, condemnation awards or indemnity paymentsthe Loans would otherwise be required hereunder), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds Net Cash Proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds Net Cash Proceeds were received or other assets used or useful in the business (or other than current assets) so long as within 545 270 days if after the applicable receipt of such Net Cash Proceeds, such Loan Party has or such Subsidiary shall have either replaced or repaired such equipment, fixed asset or real property or entered into a binding contract agreement to repair, replace or restore repair such property assets and if such binding agreement is entered into within such 270 day period, such repair or make such reinvestment replacement actually occurs within 365 270 days following the date of such receipt)Loan Party or such Subsidiary’s commitment under such binding agreement; and provided, provided further, however, that if any cash proceeds Net Cash Proceeds are not so applied in accordance with the terms hereof, the Borrower shall be immediately applied prepay an aggregate principal amount of Loans equal to 100% of such unapplied Net Cash Proceeds within two (2) Business Days following the prepayment expiration of the Loans initial 270 day period, or if a binding agreement to repair or replace such asset was entered into during such initial period, the next 180 day period (such prepayments to be applied as set forth in this clauses (vi) below).
(iv) At any time that the Net Cash Position is a positive amount and Sweep Plus Loans are outstanding, the Sweep Plus Loans shall be repaid as provided in Section 2.05(b)(iv2.04(c).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Sweep Plus 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.
(viivi) 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 Sweep Plus Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), ) and (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Sweep Plus Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(i). 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. Amounts to be applied as provided in this clause (vi) to the prepayment of the Revolving Credit Facility shall be applied first to reduce outstanding Base Rate Loans and thereafter shall be applied to prepay outstanding Eurodollar Rate Loans.
Appears in 1 contract
Sources: Credit Agreement (Benihana Inc)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a6.02(b), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage 50% of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (fiscal year covered by such financial statements, provided that any such payment no prepayments shall be required under this Section 2.05(b)(i) if the Consolidated Leverage Ratio is equal to or less than 2.50:1 as of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), last day of such prepayments to be applied as set forth in clauses (v) and (vii) belowfiscal year.
(ii) If any Loan Party the Borrower or any of its Subject Subsidiaries Disposes of any property (other than any or assets in connection with a Subject Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which in the aggregate results in the realization by the Borrower or such Person Subject Subsidiary of Net Cash ProceedsProceeds (determined as of the date of such Disposition, whether or not such Net Cash Proceeds are then received by the Borrower or such Subject Subsidiary), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds in excess of the first $20,000,000 of such Net Cash Proceeds immediately upon received in each fiscal year from Subject Dispositions (to the extent not previously applied in such fiscal year to make mandatory prepayments of Term Loans under this Section 2.05(b)(ii)), it being understood that Net Cash Proceeds subject to this Section 2.05(b)(ii) applied in such fiscal year to make prepayments of Term Loans prior to receipt of such Net Cash Proceeds in excess of the $20,000,000 threshold described above shall be deemed to have been made as a mandatory prepayment under this Section 2.05(b)(ii)), within three Business Days after the date of receipt thereof by the Borrower or such Person (such prepayments Subsidiary subject to be applied as set forth in clauses (vthe provisions of Section 2.05(b)(ix) and (vii) belowxi)); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds of such Loan Party Subject Disposition 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 the Net Cash Proceeds of such Subsidiary Subject Disposition, (B) if the Borrower shall have delivered such notice, it may reinvest all or any portion of such Net Cash Proceeds in operating assets or Acquisitions permitted under Section 7.03(f) so long as within 365 days after the receipt of such Net Cash Proceeds Proceeds, the purchase of such assets shall have been consummated, and (or within 545 days if C) on the applicable Loan Party has entered into date the Borrower consummates such purchase of assets, it shall deliver a binding contract for reinvestment certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (reinvested in accordance with the proviso of this Section 2.05(b)(ii) and, as certified by the Borrower in writing to the Administrative Agenta result, no mandatory prepayments are required under this Section 2.05(b)(ii); and provided further, however, further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)2.05.
(iii) Upon the sale or issuance by the Borrower or any Debt Issuanceof its Subject Subsidiaries of any of its Equity Interests, the Borrower shall prepay an aggregate principal amount of Loans equal to 50% of all Net Cash Proceeds received therefrom within three Business Days of the date after receipt thereof by the Borrower or such Subject Subsidiary subject to the provisions of Section 2.05(b)(xi), provided that no prepayment shall be required under this Section 2.05(b)(iii) if the Consolidated Leverage Ratio after giving pro forma effect to the application of the proceeds of such sale or issuance is equal to or less than 2.50:1.
(iv) Upon the incurrence or issuance by the Borrower or any of its Subject Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within three Business Days after the date of receipt thereof by such Loan Party the Borrower or such Subject Subsidiary (such prepayments subject to be applied as set forth in clauses (v) and (vii) belowthe provisions of Section 2.05(b)(xi).
(ivv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its SubsidiariesSubject Subsidiaries in respect of its property or assets, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within three Business Days after the date of receipt thereof by such Loan Party the Borrower or such Subject Subsidiary (such prepayments subject to be applied as set forth in clauses (v) and (vii) belowthe provisions of Section 2.05(b)(xi); providedprovided that, however, that with respect to any proceeds of insurance, insurance and condemnation awards (or payments in lieu thereof), (A) or indemnity payments, at the election of if the Borrower (pursuant intends to a reinvest the Net Cash Proceeds thereof in accordance with this proviso, it shall deliver written notice in writing by the Borrower of such intention to the Administrative Agent on or prior to the Business Day immediately following the date on which Borrower receives such Net Cash Proceeds, (B) if the Borrower shall have delivered such notice, the Net Cash Proceeds thereof may be reinvested in the manner set forth in the first proviso of receipt of such insurance proceeds, condemnation awards or indemnity payments), and Section 2.05(b)(ii) so long as no Default shall have occurred and be continuingsuch reinvestment is to restore, such Loan Party repair or such Subsidiary may apply within 365 days after replace the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property or purchase other assets with substantially the same utility and in the same line of business in respect of which such cash proceeds Net Cash Proceeds were received received, and (C) on the date the Borrower consummates such restoration, repair or within 545 days if replacement or purchase, it shall deliver a certificate of a Responsible Officer to the applicable Loan Party has entered into Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(v) and, as a binding contract to repairresult, replace or restore such property or make such reinvestment within 365 days of such receiptno mandatory prepayments are required under this Section 2.05(b)(v); and provided, further, however, provided further that any cash proceeds Net Cash Proceeds not so applied reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)2.05.
(vvi) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations 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)(vi) unless after the prepayment in full of the Loans and Swing Line Loans the Total Outstandings exceed the Aggregate Commitments then in effect.
(vii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, ratably to the Term B Facility and, if applicable, the Incremental Term Facilities and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-pro rata basis among the Closing Date Term Loans and the Additional Term Loans)and, and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (viiviii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiviii) Prepayments of the Revolving Credit Facility made pursuant to clause (i), (ii), (iii), (iv), (v) or (vi) of this Section 2.05(b), first, shall be applied ratably to the prepay L/C Borrowings and the Swing Line Loansoutstanding at such time until all such L/C Borrowings are paid in full, second, shall be applied ratably to the prepay Swing Line Loans outstanding at such time until all such Swing Line Loans are paid in full, third, shall be applied to prepay Revolving Credit Loans, Loans outstanding at such time until all such Revolving Credit Loans are paid in full and, thirdfourth, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), (iv) or (ivv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all Loans and L/C Borrowings, Swing Line Loans and Revolving Credit Loans Borrowings outstanding at such time and the Cash Collateralization of the remaining L/C Obligations have been Cash Collateralized in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii). Upon the drawing of any Letter of Credit that Credit, which has been Cash Collateralized, the such 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.
(ix) Notwithstanding any of the provisions of Section 2.05(b)(ii), so long as no Default shall have occurred and be continuing, if, on any date, the aggregate amount of Net Cash Proceeds required by Section 2.05(b)(ii) to be applied to prepay Loans is less than $1,000,000, then the Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds required under Section 2.05(b)(ii) to be applied to prepay Loans equals or exceeds $1,000,000. During such deferral period the Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Section 4.02, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of an Event Default, upon the request of the Required Lenders, the Borrower shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the Borrower that are required to be applied to prepay Loans under Section 2.05(b)(ii) (without giving effect to the first and second sentences of this clause (ix)) but which have not previously been so applied.
(x) Anything contained in this Section 2.05(b) to the contrary notwithstanding, (A) if, following the occurrence of any “Asset Disposition” (as such term is defined in the Senior Subordinated Notes Indenture or any analogous term (such as “Asset Sale”) is defined in any Material Debt Document) 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 Available Cash” (as such term is defined in the Senior Subordinated Notes Indenture or any analogous term (such as “Net Proceed”) as defined in any Material Debt Document) thereof in a particular manner, or to apply by a particular date (an “Application Date”) an amount equal to any such “Net Available Cash” in a particular manner, in either case in order to excuse the Borrower from being required to make an “Offer” (as such term is defined in the Senior Subordinated Notes Indenture or any analogous term (such as “Asset Sale Offer”) as defined in any Material Debt Document) in connection with such “Asset Disposition”, and the Borrower shall have failed to so commit or to so apply an amount equal to such “Net Available Cash” 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 Available Cash”, and, within 60 days thereafter assuming no further application or commitment of an amount equal to such “Net Available Cash” the Borrower would otherwise be required to make an “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 Available Cash” to be applied to the payment of the Loans and L/C Borrowings and to Cash Collateralize the L/C Obligations in the manner set forth in Section 2.05(b) in such amounts as shall excuse the Borrower from making any such “Offer”.
(xi) Notwithstanding the provisions of Sections 2.05(b)(i), (ii), (iii), (iv) and (v), if any mandatory prepayments under any such clause of this Section 2.05(b) would result in the Borrower incurring any obligation (as determined in the reasonable judgment of the Borrower) under Section 3.05 as a result of any such mandatory prepayment of Eurodollar Loans prior to the last day of an Interest Period, so long as no Default has occurred and is continuing, the Borrower may defer the making of such mandatory prepayment until the earlier of (A) the last day of such Interest Period and (B) the date thirty days after the date on which such mandatory prepayment would otherwise have been required to be made.
Appears in 1 contract
Mandatory. (i) Within Commencing with the fiscal year ending December 31, 2016, within the later of (x) 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)6.02(b) and (y) ninety-five (95) days after the end of such fiscal year, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow excess (if any) of (A) the ECF Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements over (B) the aggregate principal amount of all Term Loans prepaid pursuant to Section 2.05(a)(i2.05(a) (provided that any such payment and the aggregate principal amount of the optional prepayments of Revolving Credit Loans was during such fiscal year (solely to the extent such prepayments are accompanied by a concurrent equivalent permanent reduction in the Revolving Credit CommitmentCommitments); provided that any such prepayments were not made with proceeds of any Indebtedness, Disposition, equity issuance, Extraordinary Receipts or other proceeds that would not be included in calculating Consolidated EBITDA for the applicable fiscal year (such prepayments to be applied as set forth in clauses clause (v) and (vii) below).
(ii) If any Loan Party the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(bSection 7.05 (other than clause (b) or 7.05(c)thereof) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon within ten (10) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase reinvestment shall have been consummated (as certified by the Borrower in writing to the Administrative Agent) and if such Net Cash Proceeds are not so reinvested within such 365-day period but such Net Cash Proceeds are subject to a definitive agreement within such 365-day period to reinvest such Net Cash Proceeds in accordance with this Section 2.05(b)(ii) then the Borrower or such Subsidiary shall have an additional 180 days after the end of the such initial 365-day period to reinvest such Net Cash Proceeds in accordance with this Section 2.05(b)(ii); and provided provided, further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately promptly applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon the incurrence or issuance by the Borrower or any Debt Issuanceof its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within five (5) Business Days of receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iviii) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within ten (10) Business Days of receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing 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 the Borrower or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (and if such Net Cash Proceeds are not so reinvested within such 365-day period but such Net Cash Proceeds are subject to a definitive agreement within such 365-day period to reinvest such Net Cash Proceeds in accordance with this Section 2.05(b)(iv) then the Borrower or within 545 such Subsidiary shall have an additional 180 days if after the applicable Loan Party has entered into a binding contract end of the such initial 365-day period to repair, replace or restore reinvest such property or make such reinvestment within 365 days of such receiptNet Cash Proceeds in accordance with this Section 2.05(b)(iv); and provided, further, however, that any cash proceeds not so applied shall be immediately promptly applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following next four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each the Term Loan)Facility (and, to the extent provided in the definitive loan documentation therefor in accordance with Section 2.14, of any Incremental Term Loans) and, thereafter, to the remaining scheduled principal installments of the Term Facility (and, to the extent provided in the definitive loan documentation therefor in accordance with Section 2.14, of any Incremental Term Loans) on a pro rata basis; and, second, upon payment in full of all Term Loans, to the Revolving Credit Facility (without permanent reduction of the Revolving Credit Commitments) in the manner set forth in clause (vii) of this Section 2.05(b). Subject to Section 2.15, and third, such prepayments shall be paid to Cash Collateralize outstanding Letters the Lenders in accordance with their respective Applicable Percentages in respect of Creditthe relevant Facilities.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments Except as otherwise provided in Section 2.15, prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C ObligationsObligations in full; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan PartyParty or any Defaulting Lender that has provided Cash Collateral) to reimburse the applicable L/C Issuer or the applicable Revolving Credit Lenders, as applicable.
(viii) Notwithstanding any other provisions of this Section 2.05(b) any mandatory prepayments arising under Section 2.05(b)(ii) or (iv) from the receipt of Net Cash Proceeds from any Disposition or Extraordinary Receipts by any Foreign Subsidiary (each, a “Foreign Disposition”) or arising under Section 2.05(b)(i) from Excess Cash Flow directly attributable to Foreign Subsidiaries (“Foreign Excess Cash Flow”) shall not be required to the extent that the repatriation of such Net Cash Proceeds or Foreign Excess Cash Flow would (A) give rise to a material adverse tax consequence or (B) be prohibited or delayed by any requirement of applicable Laws. The Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly file any required forms, obtain any necessary consents and take all similar actions reasonably required by the applicable local Laws to permit such repatriation; provided that if such repatriation of any such affected Net Cash Proceeds or Foreign Excess Cash Flow is later permitted under applicable Laws and can be accomplished without material adverse tax consequences, such repatriation shall be effected as promptly as practicable and such repatriated Net Cash Proceeds or Foreign Excess Cash Flow, as applicable, will be promptly after such repatriation applied to the repayment of the Loans pursuant to this Section 2.05(b) to the extent provided herein.
Appears in 1 contract
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(bSection 7.05 (other than clause (d) thereof) and other than proceeds of any Approved Asbestos Insurance Settlement so long as such proceeds are used or 7.05(c)committed to be used to reimburse the US Borrower or any of its Subsidiaries or make payments in respect of related claims against the US Borrower or any of its Subsidiaries and defense costs related thereto) which that results in the realization by such Person the Loan Parties and their respective Subsidiaries of Net Cash ProceedsProceeds in excess of $10,000,000 in any Fiscal Year (excluding any portion thereof that is reinvested as provided below), the applicable Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds (to the extent in excess of $10,000,000 in such Fiscal Year) immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viv) and (viiviii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i), at the election of either the US Borrower or the European Borrower (pursuant to a notice in writing as notified by the such 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as as, within 365 180 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied subject to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(iiiii) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt Issuance(other than Debt expressly permitted to be incurred or issued pursuant to Section 7.02), the applicable Borrower shall prepay an aggregate principal amount of Loans 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 (viv) and (viiviii) below).
(iviii) Upon any Extraordinary Receipt (other than proceeds of any Approved Asbestos Insurance Settlement or Asbestos Judgment, so long as such proceeds are used or committed to be used to reimburse the US Borrower or any of its Subsidiaries or make payments in respect of related claims against the US Borrower or any of its Subsidiaries and defense costs related thereto, as applicable) received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), the applicable Borrower shall prepay an aggregate principal amount of Loans 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 (viv) and (viiviii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term A Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, to the Revolving Credit Facility in the manner set forth in clause (viiviii) of this Section 2.05(b).
(v) The US Borrower or the European Borrower shall, on the first Business Day of each week, prepay an aggregate principal amount of the Revolving Credit Loans comprising part of the same Borrowings, the L/C Advances and thirdthe Swing Line Loans and deposit an amount in the L/C Collateral Account in an amount equal to the amount by which the Dollar Equivalent (which shall be advised by the Administrative Agent from time to time as requested by the Borrowers) of the sum of the aggregate principal amount of (x) the Revolving Credit Loans, to Cash Collateralize (y) the L/C Advances and (z) the Swing Line Loans then outstanding plus the Dollar Equivalent of the aggregate Available Amount of all Letters of CreditCredit then outstanding exceeds the Revolving Credit Facility on the date of such determination; provided that upon the occurrence and during the continuance of a Default, such determination and payment shall be made by the applicable Borrower on each Business Day; and provided further, that if the Administrative Agent notifies the Borrowers at any time that the Dollar Equivalent of the Outstanding Amount of all Loans and L/C Obligations at such time exceeds an amount equal to 105% of the aggregate amount of the Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay an aggregate principal amount of the Revolving Credit Loans comprising part of the same Borrowings, the L/C Advances and the Swing Line Loans and deposit an amount in the L/C Collateral Account in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the aggregate amount of the Revolving Credit Commitments then in effect.
(vi) If The European Borrower shall, on the first Business Day of each week, prepay an aggregate principal amount of the Revolving Credit Borrowings comprising part of the same Borrowings, the L/C Advances and the Swing Line Borrowings and deposit an amount in the L/C Collateral Account in an amount equal to the amount by which the Dollar Equivalent (which shall be advised by the Administrative Agent from time to time as requested by the Borrowers) of the sum of the aggregate principal amount of (x) the Revolving Credit Borrowings, (y) the L/C Advances and (z) the Swing Line Borrowings then outstanding and made for the account of the European Borrower, plus the Dollar Equivalent of the aggregate Available Amount of all Letters of Credit then outstanding for the account of the European Borrower exceeds the European Revolving Loan Value on the date of such determination; provided that upon the occurrence and during the continuance of a Default, such determination and payment shall be made by the European Borrower on each Business Day.
(vii) If, for any reason reason, the Total Revolving Credit Outstandings denominated in Euros at any time exceed the European Revolving Credit Facility Loan Value at such time, the European Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiviii) Prepayments All prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in . In the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), ) or (ii), (iii), or (iv) of this Section 2.05(b), (A) the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at Facility shall be automatically and permanently reduced by the total amount of such time prepayment, and (B) any amount remaining after application as set forth in the Cash Collateralization preceding sentence (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the remaining L/C Obligations in full “Reduction Amount”) may be retained by the Borrower Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(iii). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral cash collateral shall be applied (without any further action by or notice to or from the Borrower Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Colfax CORP)
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property or assets in any fiscal year of Holdings (other than any Disposition of any property or assets permitted by Sections 7.05(a)Section 7.05, 7.05(bexcluding Section 7.05(k) or 7.05(cand (subject to clause (b)(ii) below) Section 7.05(i)) the Net Cash Proceeds of which, which results when aggregated with the Net Cash Proceeds of any and all other Dispositions (by any or all of the Loan Parties and/or their respective Subsidiaries) in the realization by such Person of Net Cash Proceedssame fiscal year, exceed $50,000,000, the Term Borrower shall prepay an aggregate principal amount of Loans (other than Revolving Credit Loans and Swing Line Loans) equal to 100% of such excess (above $50,000,000) within three Business Days after receipt by (or payment to order of) any Loan Party or any Subsidiary of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below)Proceeds; provided, however, that, with respect to any Net Cash Proceeds realized by any Loan Party or any Subsidiary under a Disposition described in this Section 2.05(b)(ii2.05(b)(i), at the election option of the Term Borrower (pursuant to a notice as elected by the Term Borrower in writing by the Borrower to the Administrative Agent on or prior to the date that is three Business Days after the date of realization of such DispositionNet Cash Proceeds), and so long as no Default under Section 8.01(a) or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds may be re-invested in operating assets of the Group so long as within 365 days after the following receipt of such Net Cash Proceeds (or within 545 days if Proceeds, the applicable Loan Party has entered into a binding contract for reinvestment purchase of such Net Cash Proceeds within 365 days of assets with such Disposition), such purchase proceeds shall have been consummated (as certified by the Term Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, within such 365-day period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)2.05.
(iiiii) Upon If any Debt Issuanceproceeds of casualty insurance, 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 such Loan Party condemnation awards, indemnity payments or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt similar proceeds are received by or paid to the order of or for the account of any Loan Party or any of its SubsidiariesSubsidiaries in any fiscal year of Holdings, and the Net Cash Proceeds thereof, when aggregated with the Net Cash Proceeds in respect of all other proceeds of casualty insurance, condemnation awards, indemnity payments and/or similar proceeds received by or paid to the order of or for the account of any or all of the Loan Parties and/or their respective Subsidiaries in such fiscal year, exceed $25,000,000, and such Net Cash Proceeds are not otherwise included in clause (ii), (iii) or (ivi) of this Section 2.05(b), the Term Borrower shall prepay an aggregate principal amount of Loans (other than Revolving Credit Loans and Swing Line Loans) equal to 100% of all Net Cash Proceeds received therefrom immediately upon such excess (above $25,000,000) within three Business Days after receipt thereof by such (or payment to the order of or for the account of) any Loan Party or any Subsidiary of such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Net Cash Proceeds; provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election option of the Term Borrower (pursuant to a notice as elected by the Term Borrower in writing by the Borrower to the Administrative Agent Agent) on or prior to the date that is three Business Days after the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default under Section 8.01(a) or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds proceeds, awards or payments to replace or repair the equipment, fixed assets or real property of such Loan Party or such Subsidiary in respect of which such cash proceeds proceeds, awards or payments were received (or within 545 days if may re-invest such cash proceeds, awards or payments in operating assets of the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)Group; and provided, provided further, however, that any cash proceeds proceeds, awards or payments not so applied or re-invested within such 365-day period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)2.05.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(viiii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility Amount at such time, the Revolving Credit Borrower shall immediately prepay Revolving Credit Loans, Loans and Swing Line Loans and L/C Borrowings Unreimbursed Amounts and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, however, that the Revolving Credit Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iii) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans the Total Revolving Credit Outstandings exceed the Revolving Credit Facility Amount at such time.
(viiiv) Each prepayment of Loans (other than Revolving Credit Loans and Swing Line Loans) pursuant to this Section 2.05(b) shall be applied (A) pro rata among Term Loans and, if this Section 2.05(b) is expressed to apply to the Incremental Term Loans under any Incremental Term Facility pursuant to the applicable notice in respect of such Incremental Term Facility under Section 2.14(b), the Incremental Term Loans under such Incremental Term Facility, and (B) within each of the Term Facility and each applicable Incremental Term Facility (as set forth in clause (A)), towards the principal repayment installments thereunder pro rata.
(v) Prepayments of the Revolving Credit Facility made pursuant to clause (iii) of this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings Unreimbursed Amounts and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall (subject to Section 2.03(c)(i)) be applied (without any further action by or notice to or from the any Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Genpact LTD)
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), If the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)Section 7.05) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at .
(ii) Upon the election of the Borrower (pursuant to a notice in writing sale or issuance 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuanceits Equity Interests, 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 such Loan Party or such Subsidiary the Borrower (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iii) Upon the incurrence or issuance by the Borrower of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiariesthe Borrower, and not otherwise included in clause (iii), (iiiii) or (iviii) of this Section 2.05(b), 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 such Loan Party or such Subsidiary the Borrower (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity paymentspayments that do not exceed $1,000,000 in the aggregate during the term of this Agreement, at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent (and the Administrative Agent shall promptly notify the Lenders thereof) 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 the Borrower may apply within 365 60 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)received; and provided, further, however, that any cash proceeds Net Cash Proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to repay the Term Facility Loans, and shall be paid to the principal repayment installments thereof Lenders in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)accordance with their respective Applicable Percentages, and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in extent of any excess, applied to permanently reduce the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of CreditCommitments.
(vi) If for any reason Notwithstanding the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such timeforegoing clauses (i) through (iv), the Borrower shall immediately not be required to make any such prepayment of Loans using any Net Cash Proceeds solely to the extent the Borrower is required to use such Net Cash Proceeds (and so applies such Net Cash Proceeds) to repay or prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Prepetition Loan Obligations (other than in accordance with the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments terms of the Revolving Prepetition Credit Facility made pursuant to this Section 2.05(b)Agreement, first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, or in the case of prepayments any Extraordinary Receipts constituting the proceeds of securities held in the Revolving Credit Facility required pursuant SAR Account, to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by extent the Borrower for use in elects to apply (and so applies) such proceeds to repay the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Prepetition Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableObligations.
Appears in 1 contract
Sources: Dip Credit Agreement
Mandatory. The Borrower shall make mandatory prepayments as follows:
(i) Within five (5) ten Business Days after financial statements for such Excess Cash Flow Period have been delivered pursuant to Section 6.01(a6.01(a)(i) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a6.02(b), the Borrower shall prepay make a mandatory prepayment by prepaying an aggregate principal amount of Loans equal to the Excess Cash Flow product of the applicable Prepayment Percentage of times the Excess Cash Flow for the applicable such Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) belowPeriod.
(ii) If any Loan Party the Borrower or any of its Subsidiaries (other than the Immaterial ACO Subsidiaries) Disposes of any property (property, other than pursuant to any Disposition of any property permitted by Sections 7.05(a)Excepted Disposition, 7.05(b) and the aggregate or 7.05(c)) which results individual Dispositions result in the realization by such Person Persons of Net Cash ProceedsProceeds exceeding $10 million, the Borrower shall prepay make a mandatory prepayment by prepaying an aggregate principal amount of Loans equal to 100% of all such Net Cash Proceeds immediately upon within five Business Days after receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below)Person; provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower 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, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets useful in the business of the Borrower or its Subsidiaries so long as (x) within 365 days 12 months after the receipt of such Net Cash Proceeds (or within 545 days if Proceeds, the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent), or (y) within 12 months after the receipt of such Net Cash Proceeds, the Borrower or such Subsidiary shall have entered into a definitive agreement to reinvest such Net Cash Proceeds in assets useful in the business of the Borrower or its Subsidiaries, and the purchase of such assets shall have been consummated within six months after the end of such 12 month period; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
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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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property Property in an asset sale permitted by Sections 7.05(a), 7.05(bpursuant to Section 7.05(d) or 7.05(c)) which results in the realization by such Person of Net Cash Proceedsa Casualty Event occurs, the Borrower shall prepay an aggregate principal amount of Loans 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 (viv) and (viivi) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii)2.05(b)(i) or as a result of a Casualty Event, at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 180 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into Proceeds, a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), definitive agreement relating to such purchase shall have been consummated executed (as certified by the Borrower in writing to the Administrative Agent)) and such acquisition agreement shall have closed within 90 days thereafter; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(iiiii) Upon the sale or issuance by any Debt IssuanceLoan Party or any of its Subsidiaries of any of its Equity Interests (other than any sales or issuances of Equity Interests (A) to a Loan Party or (B) pursuant to one or more private offerings in any Fiscal Year, the Net Cash Proceeds of which in the aggregate do not exceed $25,000,000) and provided that after giving effect to such sale or issuance on a pro-forma basis the Leverage Ratio is greater than or equal to 3.00 to 1.00, the Borrower shall prepay an aggregate principal amount of Loans equal to 10050% 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 (viv) and (viivi) below).
(iviii) Upon any Extraordinary Receipt received the incurrence or issuance by or paid to or for the account of any Loan Party or any of its Subsidiaries, Subsidiaries of any Debt permitted to be incurred or issued pursuant to Section 7.03(j) and not otherwise included in clause (ii), (iii) provided that after giving effect to such incurrence or (iv) of this Section 2.05(b)issuance on a pro-forma basis the Leverage Ratio is greater than or equal to 3.00 to 1.00, the Borrower shall prepay an aggregate principal amount of Loans equal to 10050% 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 (viv) and (viivi) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(bSections 2.05(b)(i), (ii) and (iii) shall be applied in the following orderapplied, first, to the Term Facility and to the principal repayment installments thereof in direct inverse order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and thirdin each case, first, to Cash Collateralize outstanding Letters the applicable portion thereof consisting of CreditBase Rate Loans, and, second, to the portion thereof consisting of Eurodollar Rate Loans.
(viv) 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, Loans and 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; 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 prepayment in full of the Revolving Credit Loans the Total Revolving Credit Outstandings exceed the Revolving Credit Facility.
(viivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, and third, shall be used applied ratably to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all any outstanding L/C Borrowings, Swing Line .
(vii) Any mandatory prepayment of Loans required pursuant to the foregoing provisions of this Section 2.05 shall (A) include any additional amounts required pursuant to Section 3.05 and Revolving Credit Loans outstanding at such time (B) not be subject to any notice and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableminimum payment provisions.
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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), If the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections Section 7.05(a) – (h), 7.05(b(j), (k) or, (l) or 7.05(c)(n) which results in the realization by such Person of aggregate Net Cash ProceedsProceeds in excess of $15,000,000 in any fiscal year, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds immediately upon in excess of $15,000,000 within three Business Days after receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within three Business Days after the date of such Disposition), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (Proceeds, such reinvestment shall have been consummated or within 545 days if the applicable Loan Party has Borrower or such Restricted Subsidiary shall have entered into a binding contract agreement for such reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that an amount equal to any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(ivii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Restricted Subsidiaries, and not otherwise included in clause (ii), (iii) or (ivi) of this Section 2.05(b), which results in the realization by such Person of aggregate Net Cash Proceeds in excess of $15,000,000 in any Fiscal Year, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within three Business Days after receipt thereof by such Loan Party the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viiix) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within three Business Days after the date of receipt of such insurance proceeds, condemnation awards or indemnity paymentsNet Cash Proceeds), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Restricted Subsidiary may apply within have 365 days after the receipt of such cash proceeds, to apply such proceeds to replace replace, rebuild, restore or repair the equipment, fixed assets or real property in respect of which such cash proceeds Net Cash Proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)received; and provided, further, however, that an amount equal to any cash proceeds not so applied within such 365 day period shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(iv2.05(b)(ii).
(viii) Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility and to the next four scheduled principal repayment -60- installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)maturity, and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, pro rata, to the Revolving Credit Facility in the manner set forth in clause (vii) of this remaining amortization installments pursuant to Section 2.05(b2.07(a), and third, to Cash Collateralize outstanding Letters of Credit.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.05(b)(iv), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(vi) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any Net Cash Proceeds attributable to Foreign Subsidiaries would be (x) prohibited 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), (y) restricted by applicable material constituent documents or other material agreements, or (z) reasonably be expected to result in a Tax liability or otherwise result in adverse Tax cost consequences for the Borrower or any Subsidiaries, an amount equal to the portion of such Net Cash 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 pursuant to this Section 2.05.
Appears in 1 contract
Sources: Credit Agreement (TopBuild Corp)
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), the Borrower shall shall, subject to clause (b)(v) of this Section 2.03, prepay an aggregate principal amount of Loans equal to (A) 50% (such percentage as it may be reduced as described below, the Excess Cash Flow Percentage “ECF Percentage”) of Excess Cash Flow in excess of $1,000,000 for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements (commencing with the aggregate fiscal year ended September 30, 2017) (each such fiscal year period, an “ECF Period”) minus (B) the sum of all voluntary prepayments of or purchases of (x) Loans made pursuant to Sections 2.05(a)(i), 2.05(a)(iv) and 10.07(h) (in an amount, in the case of prepayments or purchases pursuant to Section 2.05(a)(iv) and 10.07(h), equal to the discounted amount actually paid in respect of the principal amount of all such Loans prepaid pursuant and only to Section 2.05(a)(ithe extent that such Loans have been cancelled), (y) Permitted Additional Pari Debt and Credit Agreement Refinancing Indebtedness to the extent secured in whole or in part on a pari passu basis with the Loans under this Agreement (but without regard to the control of remedies) and (z) loans under the ABL Facility (including any Revolving Commitment Increase) and loans under any other revolving facility that is secured, in whole or in part, on a pari passu basis with the Loans under this Agreement (but without regard to the control of remedies) (provided that in each case of this clause (iii) (and with respect to any such payment of revolving facility under clause (ii) above), to the Revolving Credit Loans was extent accompanied by a permanent reduction in the Revolving Credit Commitmentcorresponding commitments under the ABL Facility or other revolving commitments, as applicable), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments each of the Revolving Credit Facility required pursuant to clause immediately preceding clauses (ix), (iiy) and (z), made during such fiscal year (iii), or (iv) without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 2.05(b), the amount remaining, if any, 2.03(b)(i) for any prior fiscal year) or after the fiscal year-end but prior to the date a prepayment pursuant to this Section 2.03(b)(i) is required to be made in full respect of all L/C Borrowingssuch fiscal year (any such payment made after the fiscal year-end, Swing Line Loans an “After Year-End Payment”) and Revolving Credit Loans outstanding at in each case to the extent such time and prepayments are not funded with the Cash Collateralization proceeds of Indebtedness (other than any Indebtedness under the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower ABL Facility or any other Loan Partyrevolving credit facilities) or any Cure Amount (as defined in the ABL Facility Documentation); provided that (x) the ECF Percentage shall be 25% if the Secured Net Leverage Ratio as of the last day of the most recently ended Test Period covered by such financial statements was less than 3.50 to reimburse 1.00 and greater than 3.00 to 1.00 and (y) the L/C Issuer ECF Percentage shall be 0% if the Secured Net Leverage Ratio as of the last day of the most recently ended Test Period covered by such financial statements was less than 3.00 to 1.00; provided, further, that (A) following the making of any After Year-End Payment, (i) the Secured Net Leverage Ratio shall be recalculated giving Pro Forma Effect to such After Year-End Payment as if such payment were made during the fiscal year of the applicable Excess Cash Flow prepayment and the ECF Percentage for purposes of making such Excess Cash Flow prepayment shall be determined by reference to such recalculated Secured Net Leverage Ratio and (ii) such After Year-End Payment shall not reduce the required amount of) any subsequent Excess Cash Flow prepayment, (B) 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 Revolving Credit Lendersterms of the documentation governing such Indebtedness, as applicable.then the Borrower (or any Restricted Subsidiary) may apply such portion of Excess Cash Flow otherwise required to repay the Loans pursuant to this Section 2.03(b)
Appears in 1 contract
Mandatory. (i) Within five [Reserved].
(5ii) If any Relevant Transaction occurs, 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 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 financial statements have been delivered 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 Parent 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 Pari Passu Indebtedness 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; provided that only the amount of Net Cash Proceeds of Relevant Transactions in excess of the greater of (x) $13,500,000 and (y) 10.0% of Four Quarter Consolidated EBITDA at any time of determination on a Pro Forma Basis 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 Parent or any Restricted Subsidiary of any Specified Refinancing Term Loans or any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a)7.01, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal Term Loan Tranches in an amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party the Parent or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Restricted Subsidiary.
(iv) Upon [Reserved].
(v) If for any Extraordinary Receipt received by or paid to or for reason the account 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.
(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 Party Tranche on a pro rata basis (other than a prepayment of 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). 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 Term 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 Term SOFR Loans, in each case in a manner that minimizes the amount payable by the Borrower in respect of such prepayment pursuant to Section 3.06.
(vii) All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a Term SOFR Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Term SOFR Loan pursuant to Section 3.06. Notwithstanding any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) the other provisions of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing 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 Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Term SOFR Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments is required to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of under this Section 2.05(b), and third, to Cash Collateralize outstanding Letters other than on the last day of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such timeInterest Period therefor, the Borrower shall immediately prepay Revolving Credit Loansmay, Swing Line Loans and L/C Borrowings and/or in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateralize Collateral account until the L/C Obligations (other than last day of such Interest Period, at which time the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, Administrative Agent shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse apply such amount to the L/C Issuer 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 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 or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with this Section 2.05(b).
(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 Foreign Subsidiary or a Subsidiary of a Foreign Subsidiary (a “Foreign Disposition”) or the Revolving Credit LendersNet Cash Proceeds of any Casualty Event from a Foreign Subsidiary or a Subsidiary of a Foreign Subsidiary (a “Foreign Casualty Event”), as applicablein each case giving rise to a prepayment event pursuant to Section 2.05(b)(ii) is prohibited, restricted or delayed by applicable local law, rule or regulation (including financial assistance and corporate benefit restrictions and fiduciary and statutory duties of any director or officer 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) (any such event, a “Regulatory Payment Block”), the portion of such Net Cash 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 and the Borrower shall not be required to monitor any such Regulatory Payment Block and/or reserve cash for future repatriation after the Borrower has notified the Administrative Agent of the existence of such Regulatory Payment Block.
(ix) Notwithstanding any other provisions of this Section 2.05, to the extent that the Borrower has determined in good faith that the repatriation or distribution 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) would have a material adverse tax consequence on the Parent or any Subsidiary of the foregoing (taking into account any foreign tax credit or other tax benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds, an amount equal to such Net Cash Proceeds so affected shall not be required to be prepaid pursuant to this Section 2.05(b).
Appears in 1 contract
Mandatory. (i) Within If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property which results in Net Cash Proceeds in excess of $5,000,000 individually or on a cumulative basis in any fiscal year of Holdings, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) no later than five (5) Business Days following receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100.0% of the amount of all such Net Cash Proceeds in excess of $5,000,000 for the applicable fiscal year; provided that in the case of each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss or, in each case, if so committed to be invested or reinvested within such 365 day period, invested or reinvested within 180 days after such initial 365 day period, the Net Cash Proceeds thereof in assets used or useful in the business of the Borrower and its Subsidiaries (other than current assets), then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section 2.8(b)(i) in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested or contractually committed to be invested or reinvested (and actually reinvested within such extension period) as described in the Borrower’s notice within such 365-day period (or such extension period). Promptly after the end of such 365-day period (or such extension period), the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrower’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $5,000,000 for the applicable fiscal year not so invested or reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(ii) If after the Closing Date the Borrower or any Subsidiary shall incur or assume any Indebtedness other than that permitted by Section 7.1, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such incurrence or assumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such incurrence or assumption the Borrower shall prepay the Obligations in an amount equal to such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 7.1 or any other terms of this Agreement.
(iii) Within fifteen (15) days after annual financial statements are required to have been delivered pursuant to Section 6.01(a) and 6.1(b), beginning with the related Compliance Certificate has been delivered pursuant to Section 6.02(a)fiscal year ending December 31, 2022, the Borrower shall prepay the Obligations by an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage (1) 50.0% of Excess Cash Flow for the most recently completed fiscal year of Holdings minus the sum of:
(A) all voluntary prepayments of Term Loans and any Incremental Term Loans; and
(B) all voluntary prepayments of Revolving Loans to the extent the applicable Revolving Credit Commitments are permanently reduced by the amount of such payments; in each case of clauses (ii)(A) and (iii)(B) above, during such calendar year (and not applied to the Excess Cash Flow Period prepayment under this clause (iii) for the prior year) or after the end of such calendar year and prior to the prepayment date in this clause (iii), and to the extent such prepayments are funded with Internally Generated Funds; provided that (A) if the Consolidated Total Net Leverage Ratio as of the end of such fiscal year is less than 3.00:1.00 but equal to or greater than 2.50:1.00, then such percentage shall be reduced to 25.0% and (B) if the aggregate principal Consolidated Total Net Leverage Ratio as of the end of such fiscal year is less than 2.50:1.00, then such percentage shall be reduced to 0.0%. The amount of all each such prepayment shall be applied first to the outstanding Term Loans prepaid pursuant until paid in full (such prepayments being applied ratably to Section 2.05(a)(i) the remaining installments of principal (provided that any such other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), and then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit CommitmentCommitments), such prepayments then to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Swing Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, then to Cash Collateralize outstanding Letters of Credit.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed The Borrower shall, on each date the Revolving Credit Facility at such timeCommitments are reduced pursuant to Section 2.10, prepay the Borrower shall immediately prepay Revolving Credit LoansLoans and, if necessary, Swing Line Loans and L/C Borrowings and/or and, if necessary, in accordance with Section 4.5, Cash Collateralize the L/C Obligations (other than by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Borrowings) in an aggregate Obligations then outstanding to the amount equal to such excesswhich the Revolving Credit Commitments have been so reduced.
(viiv) Prepayments Unless the Borrower otherwise directs, prepayments of the Revolving Credit Facility made pursuant to Loans under this Section 2.05(b), first, 2.8(b) shall be applied first ratably to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the L/C Borrowings and the Swing Line Loans, second, order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be applied ratably made by the payment of the principal amount to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; prepaid and, in the case of prepayments any Term Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Lenders under Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the 9.1. Each Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablemade in accordance with Section 4.5.
Appears in 1 contract
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Holdings or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(aSection 7.05 (except pursuant to Section 7.05(j), 7.05(bSection 7.05(k) or 7.05(cSection 7.05(l))) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of an aggregate amount of $10,000,000 per Fiscal Year, the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of such Net Cash Proceeds immediately upon in excess of such $10,000,000 no later than the later of (a) five (5) Business Days following receipt thereof by such Person and (b) five (5) Business Days after such $10,000,000 threshold is reached in such Fiscal Year (such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below); provided.
(ii) In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2015), at the election of the Borrower Borrowers shall, no later than ninety (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 90) days after the receipt end of such Net Cash Proceeds Fiscal Year, prepay (or within 545 days if Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to the applicable Loan Party has entered into a binding contract for reinvestment ECF Percentage of such Net Consolidated Excess Cash Proceeds within 365 days Flow for such Fiscal Year less an amount equal to the aggregate principal amount of such Disposition), such purchase shall have been consummated (as certified Term Loans voluntarily prepaid by the Borrower in writing Borrowers during such Fiscal Year pursuant to Section 2.05(a) with internally generated cash of Holdings (and not from the Administrative Agent); and provided furtherproceeds of Indebtedness or the sale or issuance of Equity Interests) (such amount, howeverthe “Excess Cash Flow Amount”, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iiparagraphs (v) and (vii) below).
(iii) Upon the incurrence or issuance by Holdings or any Debt Issuance, of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03) the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of all Net Cash Proceeds received therefrom immediately upon on the day of receipt thereof by such Loan Party Holdings or such Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party Holdings or any of its Subsidiaries, Subsidiaries and not otherwise included in clause paragraph (iii), (iiiii) or (iviii) of this Section 2.05(b), the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of all Net Cash Proceeds received therefrom immediately upon in excess of $10,000,000 per Fiscal Year no later than the later of (a) five (5) Business Days following receipt thereof by such Loan Party or Person and (b) five (5) Business Days after such Subsidiary $10,000,000 threshold is reached in such Fiscal Year (such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment (or Cash Collateralization, as applicable) of Loans Pro Rata Obligations pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, ratably to the Term Facility and A Loans held by all Term Lenders in accordance with their Applicable Percentages (allocated to the next four principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)and, and thereafter, on a pro-pro rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loanthereof and the repayment at the final maturity thereof), second, any excess after the application of such proceeds in accordance with clause first above, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), ) and third, any excess after the application of such proceeds in accordance with clauses first and second above may be retained by the Borrowers. Any prepayment of a Loan pursuant to Cash Collateralize outstanding Letters of Creditthis 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 exceed the aggregate Revolving Credit Facility Commitments at such time, the Borrower Revolving Credit 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 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 the Administrative Agent notifies Holdings at any time that the Total Revolving Credit Outstandings denominated in Alternative Currencies as of the applicable Revaluation Date exceeds an amount equal to 103% of the Alternative Currency Sublimit then in effect, then, within two (2) Business Days after receipt of such excessnotice, the Revolving Credit Borrowers shall prepay Revolving Credit Loans and/or Cash Collateralize Letters of Credit (in an aggregate amount equal to 105% of the face amount thereof) in an aggregate amount sufficient to reduce such Total Revolving Credit Outstandings denominated in Alternative Currencies as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit LoansLoans held by all Revolving Credit Lenders in accordance with their Applicable Percentages, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the any Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable. Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b) shall be applied ratably to the outstanding Revolving Credit Loans.
Appears in 1 contract
Sources: Credit Agreement (ACCO BRANDS Corp)
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below[Reserved].
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property Motor Vehicle (other than in connection with a Motor Vehicle Financing (including in connection with the repayment or other discharge of any Disposition Motor Vehicle Financing with or in anticipation of the receipt of proceeds from any sale or other disposition of any Motor Vehicles securing or the subject of such Motor Vehicle Financing) or a Newly Acquired Motor Vehicle Financing), Disposes of any property permitted by Sections 7.05(a), 7.05(bpursuant to Section 7.11(c) or 7.05(c)Section 7.11(p) or suffers a Casualty Event which results in the realization by such Person in such transaction (or series of related transactions) of Net Cash ProceedsProceeds in excess of $50,000,000, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon within five (5) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition or Casualty Event described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition)Borrower, and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets (including Permitted Acquisitions) so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); provided further, that acquisitions of assets (including pursuant to Permitted Acquisitions) that occurred within 90 days prior to receipt of such Net Cash Proceeds shall be treated as a permitted application pursuant to this clause; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii); provided further that no prepayment shall be required pursuant to this Section 2.05(b)(ii) if at the time of such Disposition or Casualty Event, the Consolidated Leverage Ratio is less than or equal to 2.50:1.00.
(iii) Upon If any Debt IssuanceLoan Party Disposes of any property in connection with a sale and leaseback pursuant to Section 7.15(c)(ii) 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 all such Net Cash Proceeds received therefrom immediately upon within five (5) Business Days of receipt thereof by such Loan Party or such Subsidiary Person (such prepayments to be applied as set forth in clauses (v) and (vii) below; provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(iii), at the election of the Borrower, and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets (including Permitted Acquisitions) so long 509265-1512-15059-Active.17708695.1 49 as within 365 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); provided further, that acquisitions of assets (including pursuant to Permitted Acquisitions) that occurred within 90 days prior to receipt of such Net Cash Proceeds shall be treated as a permitted application pursuant to this clause; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iii); provided further that no prepayment shall be required pursuant to this Section 2.05(b)(iii) if at the time of such Disposition, the Consolidated Leverage Ratio is less than or equal to 2.50:1.00.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of If any Loan Party or receives any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b)Net Cash Proceeds from any Motor Vehicle Financing, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all such Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments Proceeds, to be applied as set forth in clauses (v) and (vii) below); provided, however, provided that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (no prepayment shall be required pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)) if at the time of, and after giving effect to, the consummation of such Motor Vehicle Financing, the Consolidated Leverage Ratio on a pro forma basis is less than or equal to 2.50:1.00.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Tranche A Term Facility and Facility, to the principal repayment installments thereof occurring within the next 24 months in direct order of maturity maturity, second, to the following four (4) scheduled payments Tranche A Term Facility, to be made on each Term Loan Repayment Date arising after the applicable payment date (remaining principal repayment installments thereof on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)basis, and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), secondthird, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), (iv) or (ivv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii). 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.. Notwithstanding the foregoing, if a mandatory prepayment of Eurodollar Rate Loans is required pursuant to clause (b) of this Section 2.05 to be made on a date that is not an Interest Payment Date, the Borrower may delay such mandatory prepayment until the next succeeding Interest Payment Date so long as (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Borrower deposits an amount equal to such mandatory prepayment for the period of such delay in a cash collateral account maintained with (or, at the Administrative Agent’s discretion, on behalf of) (and subject to documentation
Appears in 1 contract
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), If the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections Section 7.05(a) through (h), 7.05(b(j), (k), (l), (n), (o) or 7.05(c(p)) which results in the realization by such Person of aggregate Net Cash ProceedsProceeds for all such Dispositions in any fiscal year in excess of the Prepayment Amount, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds immediately upon in excess of the Prepayment Amount within three Business Days after receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within three Business Days after the date of such Disposition), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Restricted Subsidiary may reinvest use all or any portion of such Net Cash Proceeds to consummate Permitted Acquisitions or other Investments not prohibited under this Agreement, or to acquire, replace, rebuild, restore or repair any real property, equipment or other tangible assets that are used in operating assets or useful to the business of the Borrower or the Restricted Subsidiaries (collectively, “Permitted Reinvestments”) and so long as within during the period beginning on the date that is 180 days prior to, and ending on the date that is 365 days after after, the receipt of such Net Cash Proceeds, such Net Cash Proceeds shall have been used to consummate one or more Permitted Reinvestments (or, in the case of any transaction constituting a Permitted Reinvestment consummated within 180 days prior to the receipt of such Net Cash Proceeds, “deemed” used) or within 545 days if the applicable Loan Party has Borrower or such Restricted Subsidiary shall have entered into a binding contract agreement for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated Permitted Reinvestment (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that an amount equal to any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, used to consummate a Permitted Reinvestment shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(ivii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Restricted Subsidiaries, and not otherwise included in clause (ii), (iii) or (ivi) of this Section 2.05(b), which results in the realization by such Person of aggregate Net Cash Proceeds for all such Extraordinary Receipts in any fiscal year in excess of the Prepayment Amount, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all such Net Cash Proceeds received therefrom immediately upon in excess of the Prepayment Amount within three Business Days after receipt thereof by such Loan Party the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiiii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within three Business Days after the date of receipt of such insurance proceeds, condemnation awards or indemnity paymentsNet Cash Proceeds), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Restricted Subsidiary may apply within use all or any portion of such Net Cash Proceeds to consummate one or more Permitted Reinvestments and so long as during the period beginning on the date that is 180 days prior to, and ending on the date that is 365 days after after, the receipt of such cash proceeds Net Cash Proceeds, such Net Cash Proceeds shall have been used to replace consummate one or repair more Permitted Reinvestments (or, in the equipmentcase of any transaction constituting a Permitted Reinvestment consummated within 180 days prior to the receipt of such Net Cash Proceeds, fixed assets “deemed” used) or real property in respect of which the Borrower or such cash proceeds were received (or within 545 days if the applicable Loan Party has Restricted Subsidiary shall have entered into a binding contract agreement for such Permitted Reinvestment (as certified by the Borrower in writing to repair, replace or restore such property or make such reinvestment within 365 days of such receiptthe Administrative Agent); and provided, provided further, however, that an amount equal to any cash proceeds Net Cash Proceeds not subject to such definitive agreement or so applied used to consummate a Permitted Reinvestment shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(iv2.05(b)(ii).
(viii) Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to on a pro rata basis between the Term Facility Facilities and to the principal repayment installments thereof as directed by the Borrower in writing (and in the absence of any direction, in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loansremaining quarterly principal installments thereof), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.05(b)(iv), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(vi) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any Net Cash Proceeds attributable to Foreign Subsidiaries would be (x) prohibited 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), (y) restricted by applicable material constituent documents or other material agreements, or (z) reasonably be expected to result in a Tax liability or otherwise result in adverse Tax cost consequences for the Borrower or any Subsidiaries, an amount equal to the portion of such Net Cash 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 pursuant to this Section 2.05.
Appears in 1 contract
Sources: Credit Agreement (TopBuild Corp)
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)At any time in which any Incremental Term Facility Loan remains outstanding, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If if any Loan Party or any of its Subsidiaries (other than Agway Subsidiaries, Inactive Subsidiaries or Excluded Subsidiaries (other than S▇▇▇▇▇▇▇▇)) Disposes of any property (other than any Disposition of any property permitted by Sections Section 7.05(a), 7.05(b(b), (c), (d), (e) or 7.05(c(h)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viii) and (viiv) below); provided, however, thatthat (1) the first $50,000,000 of such Net Cash Proceeds received in any fiscal year (the “Exempt Proceeds”) shall not be subject to the mandatory prepayment requirements set forth in this Section 2.05(b)(i)(A), and (2) with respect to any Net Cash Proceeds realized under received in respect of a Disposition described in this Section 2.05(b)(ii)2.05(b)(i)(A) in excess of the Exempt Proceeds, at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days 12 months after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase reinvestment shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that (x) any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, within such 12 month period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.05(b)(i)(A).
, and (iiiy) Upon if a Default has occurred and is continuing at any Debt Issuance, time that the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all or a Subsidiary Guarantor receives or is holding any Net Cash Proceeds received therefrom immediately upon receipt thereof by which have not yet been reinvested, such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(i)(A).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) Within five (5) Beginning with the fiscal year ending December 2006, within two Business Days after the Compliance Certificate related to the financial statements have been delivered pursuant to Section 6.01(aSECTION 6.01(A) and the related Compliance Certificate has been delivered pursuant to Section 6.02(aSECTION 6.02(B), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage 50% of Excess Cash Flow for the applicable fiscal year covered by such financial statements; provided, that to the extent (x) the 52 Consolidated Leverage Ratio for the Measurement Period then ended shall be less than 2.50:1.00, the amount of such prepayment shall be equal to 25% of Excess Cash Flow for the fiscal year covered by such financial statements, and (y) the Consolidated Leveraged Ratio for the Measurement Period then ended shall be less than 1.50:1.00, the aggregate principal amount of all such prepayment shall be equal to zero; provided further that to the extent the Borrower shall have made any optional prepayments of Term B Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the or Revolving Credit Loans was accompanied by accompanying a permanent corresponding reduction in the Revolving Credit Commitment)Commitment pursuant to SECTION 2.05(A) in the fiscal year with respect to which such Excess Cash Flow is calculated, the amount of such optional prepayments to shall be applied as set forth in clauses (v) and (vii) belowcredited against the foregoing mandatory prepayment.
(ii) If any Loan Party the Borrower or any of its Subsidiaries Disposes makes any Disposition of any property or assets (other than any Disposition of any property or assets permitted by Sections 7.05(aSECTION 7.05(A), 7.05(b(B), (C), (D), (E), (H), (I) or 7.05(c(J)) which results in the realization by the Borrower or such Person Subsidiary of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly upon receipt of such Net Cash Proceeds immediately upon receipt thereof by the Borrower or such Person Subsidiary; PROVIDED, HOWEVER, that (such prepayments A) Net Cash Proceeds realized under a Disposition or a series of related Dispositions described in this SECTION 2.05(B)(II) shall not be required to be applied to the prepayment of the Loans as set forth in clauses this SECTION 2.05 unless the fair market value of the property or assets subject thereto exceeds $250,000, (vB) Net Cash Proceeds realized under a Disposition described in this SECTION 2.05(B)(II) shall not be required to be applied to the prepayment of the Loans as set forth in this SECTION 2.05 until the aggregate amount of such Net Cash Proceeds, together with the Net Cash Proceeds of other such Dispositions, in the aggregate not so prepaid or reinvested exceeds $3,000,000 in any fiscal year, in which case, all such aggregate Net Cash Proceeds shall also be applied to the prepayment of the Loans as set forth in this SECTION 2.05; and (viiC) belowthe Net Cash Proceeds of any Disposition in the ordinary course of business of car fleets used by employees or consultants of the Borrower and its Subsidiaries shall not be subject to this SECTION 2.05(B)(II); providedPROVIDED, howeverFURTHER, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(iiSECTION 2.05(B)(II), (x) at the election option of the Borrower (pursuant to a notice in writing as elected by the Borrower in writing to the Administrative Agent on or prior to the date of such DispositionDisposition or the receipt of such Net Cash Proceeds), and so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days or, if earlier, the applicable Loan Party has entered into a binding contract for reinvestment of date on which such Net Cash Proceeds within 365 days would be required to be applied, or to be offered to be applied, to prepay, redeem or defease any Indebtedness of such Dispositionthe Borrower or any of its Subsidiaries under any Permitted Financing), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); , and provided further, however, that (y) any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)SECTION 2.05. Notwithstanding the foregoing, with respect to any Net Cash Proceeds realized from a Disposition of any Specified Florida Properties, any legally binding agreement to make expenditures in respect of such Specified Florida Properties at the time of such Disposition shall be deemed to constitute a reinvestment of the Net Cash Proceeds of such Disposition in an aggregate amount equal to such committed expenditures so long as no Permitted Financing is outstanding or such agreement constitutes a reinvestment of such Net Cash Proceeds under any Permitted Financing; PROVIDED, that if such legally binding agreement terminates or expires prior to the completion of such expenditures or all or a portion of such expenditures are no longer required pursuant to such legally binding agreement or if such Net Cash Proceeds would be required to be applied, or to be offered to be applied, to prepay, redeem or defease any Indebtedness of the Borrower or any of its Subsidiaries under any Permitted Financing, then Net Cash Proceeds in an amount equal to any such expenditures not completed or no longer required to be so applied or offered shall be immediately applied to the prepayment of the Loans as set forth in this SECTION 2.05.
(iii) Upon the sale or issuance by the Borrower or any Debt Issuanceof its Subsidiaries of any of its Equity Interests (other than (x) any sales or issuances of Equity Interests by any Subsidiary of the Borrower to the Borrower or to any Loan Party or by any Subsidiary of the Borrower that is not a Guarantor to any other Subsidiary of the Borrower that is not a Guarantor or (y) Equity Interests issued in connection with an Employee Benefit Arrangement or with a stock incentive plan, stock option plan or other equity based compensation plan or arrangement), the Borrower shall prepay an aggregate principal amount of Loans equal to 10050% of all Net Cash Proceeds received therefrom immediately promptly upon receipt thereof by such Loan Party the Borrower or such Subsidiary Subsidiary; PROVIDED, HOWEVER, that (A) no prepayments shall be required from the Net Cash Proceeds realized from any exercise of any option, warrant, or other right to acquire capital stock in the Borrower to the extent the Borrower uses such prepayments Net Cash Proceeds to be applied as set forth in clauses (v) purchase, redeem or otherwise acquire shares of its common stock within 180 days after the receipt of such Net Cash Proceeds, and (viiB) below)the foregoing percentage shall be reduced to zero in the event that the Consolidated Leverage Ratio at the end of most recently completed fiscal quarter was not greater than 1.0 to 1.0.
(iv) Upon any Extraordinary Receipt received the incurrence or issuance by or paid to or for the account of any Loan Party Borrower or any of its Subsidiaries, and not otherwise included in clause Subsidiaries of any Indebtedness (ii), (iii) other than Indebtedness expressly permitted to be incurred or (iv) of this Section 2.05(bissued pursuant to SECTION 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses Subsidiary.
(v) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries, and not otherwise included in CLAUSE (viiII), (III), or (IV) belowof this SECTION 2.05(B), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly upon receipt thereof by the Borrower or such Subsidiary; providedPROVIDED, howeverHOWEVER, that with respect to any proceeds of insuranceExtraordinary Receipt, condemnation awards (or payments in lieu thereofx) or indemnity payments, at the election option of the Borrower (pursuant to a notice in writing as elected by the Borrower in writing to the Administrative Agent on or prior to the date of the receipt of such insurance proceeds, condemnation awards or indemnity paymentsExtraordinary Receipt), and so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may apply within 365 days after the receipt of such cash proceeds Extraordinary Receipt to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were Extraordinary Receipt was received or, as applicable, reinvest all or any portion of any other such Extraordinary Receipt in operating assets so long as within 365 days after the receipt of such Extraordinary Receipt (or, if earlier, the date on which such amounts would be required to be applied, or within 545 days if to be offered to be applied, to prepay, redeem or defease any Indebtedness of the applicable Loan Party has Borrower or any of its Subsidiaries under any Permitted Financing), such replacement, repair or purchase shall have been consummated or the Borrower or such Subsidiary shall have entered into a legally binding contract agreement to repairconsummate such replacement, replace repair or restore purchase (each as certified by the Borrower in writing to the Administrative Agent), and, in the case of any such property agreement to replace, repair or make purchase, such reinvestment replacement, repair or purchase shall have been consummated within 365 540 days (or, if earlier, the date on which such amounts would be required to be applied, or to be offered to be applied, to prepay, redeem or defease any Indebtedness of the Borrower or any of its Subsidiaries under any Permitted Financing) after such receiptcertification of agreement to replace, repair or purchase (as certified by the Borrower in writing to the Administrative Agent); , and provided, further, however, that (y) any cash proceeds Extraordinary Receipt not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of CreditSECTION 2.05.
(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, Loans and Swing Line Loans and L/C Borrowings Unreimbursed Amounts and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) 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)(VI) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans the Total Revolving Credit Outstandings exceed the Revolving Credit Facility at such time.
(vii) Each prepayment of Loans pursuant to this SECTION 2.05(B) shall be applied, FIRST, to the Term B Facility and to the principal repayment installments thereof on a pro-rata basis and, SECOND, to the Revolving Credit Facility in the manner set forth in CLAUSE (VIII) of this SECTION 2.05(B).
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(bCLAUSE (I), first(II), (III), (IV), (V), or (VI) of this SECTION 2.05(B), FIRST, shall be applied ratably to the L/C Borrowings Unreimbursed Amounts and the Swing Line Loans, secondSECOND, shall be applied ratably to the outstanding Revolving Credit Loans, and, thirdTHIRD, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause CLAUSE (iI), (iiII), (iiiIII), (IV) or (ivV) of this Section 2.05(bSECTION 2.05(B), the amount remaining, if any, after the prepayment in full of all L/C BorrowingsUnreimbursed Amounts, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the "REDUCTION AMOUNT") may be retained by the Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in SECTION 2.06(B)(II). 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
Mandatory. (i) Within Commencing with the fiscal year ending December 31, 2015, within the later of (x) 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)6.02(b) and (y) ninety-five (95) days after the end of such fiscal year, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow excess (if any) of (A)the ECF Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements over (B) the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i2.05(a) and the aggregate principal amount of optional prepayments of loans under the ABL Facility during such fiscal year (solely to the extent such prepayments are accompanied by a concurrent equivalent permanent reduction in the commitments under the ABL Facility); provided that any such payment prepayments were not made with proceeds of any Indebtedness, Disposition, equity issuance, Extraordinary Receipts or other proceeds that would not be included in calculating Consolidated EBITDA for the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), applicable fiscal year (such prepayments to be applied as set forth in clauses clause (v) and (vii) below).
(ii) If any Loan Party the Borrower or any of its Subsidiaries Disposes of any property (other than (x) any Disposition of any property permitted by Sections 7.05(aSection 7.05 (other than clause (b) thereof) and (y) any Disposition of property subject to a first priority Lien securing ABL Indebtedness (which, for the avoidance of doubt, shall include (i) ABL Priority Collateral, (ii) property of Foreign Subsidiaries of the type that would constitute ABL Priority Collateral and (iii) property of Foreign Subsidiaries in which the Administrative Agent does not have a Lien), 7.05(b) the proceeds of which are used to prepay the ABL Indebtedness or 7.05(c)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 immediately upon within ten (10) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase reinvestment shall have been consummated (as certified by the Borrower in writing to the Administrative Agent) and if such Net Cash Proceeds are not so reinvested within such 365-day period but such Net Cash Proceeds are subject to a definitive agreement within such 365-day period to reinvest such Net Cash Proceeds in accordance with this Section 2.05(b)(ii) then the Borrower or such Subsidiary shall have an additional 180 days after the end of the such initial 365-day period to reinvest such Net Cash Proceeds in accordance with this Section 2.05(b)(ii); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately promptly applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon the incurrence or issuance by the Borrower or any Debt Issuanceof its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within five (5) Business Days of receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (vii) below).
(iv) Upon any Extraordinary Receipt (other than proceeds of insurance and condemnation awards payable as a result of theft, loss, physical destruction, damage, taking or similar event with respect to property subject to a first priority Lien securing ABL Indebtedness (which, for the avoidance of doubt, shall include (i) ABL Priority Collateral, (ii) property of Foreign Subsidiaries of the type that would constitute ABL Priority Collateral and (iii) property of Foreign Subsidiaries in which the Administrative Agent does not have a Lien), the proceeds of which are used to prepay the ABL Facility or cash collateralize undrawn letters of credit thereunder) received by or paid to or for the account of any Loan Party the Borrower or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iviii) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within ten (10) Business Days of receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing 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 the Borrower or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (and if such Net Cash Proceeds are not so reinvested within such 365-day period but such Net Cash Proceeds are subject to a definitive agreement within such 365-day period to reinvest such Net Cash Proceeds in accordance with this Section 2.05(b)(iv) then the Borrower or within 545 such Subsidiary shall have an additional 180 days if after the applicable Loan Party has entered into a binding contract end of the such initial 365-day period to repair, replace or restore reinvest such property or make such reinvestment within 365 days of such receiptNet Cash Proceeds in accordance with this Section 2.05(b)(iv); and provided, further, however, that any cash proceeds not so applied shall be immediately promptly applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the next four scheduled principal repayment installments thereof of the Loans in direct order of maturity and, thereafter, to the following four (4) remaining scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of CreditLoans on a pro rata basis.
(vi) If for Notwithstanding any reason other provisions of this Section 2.05(b) any mandatory prepayments arising under Section 2.05(b)(ii) or (iv) from the Total Revolving Credit Outstandings at receipt of Net Cash Proceeds from any time exceed Disposition or Extraordinary Receipts by any Foreign Subsidiary (each, a “ Foreign Disposition”) or arising under Section 2.05(b)(i) from Excess Cash Flow directly attributable to Foreign Subsidiaries (“Foreign Excess Cash Flow”) shall not be required to the Revolving Credit Facility at extent that the repatriation of such timeNet Cash Proceeds or Foreign Excess Cash Flow would (A) give rise to a material adverse tax consequence or (B) be prohibited or delayed by any requirement of applicable Law. The Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly file any required forms, obtain any necessary consents and take all similar actions reasonably required by the Borrower applicable local Laws to permit such repatriation; provided that if such repatriation of any such affected Net Cash Proceeds or Foreign Excess Cash Flow is later permitted under applicable Laws and can be accomplished without material adverse tax consequences, such repatriation shall immediately prepay Revolving Credit Loansbe effected as promptly as practicable and such repatriated Net Cash Proceeds or Foreign Excess Cash Flow, Swing Line Loans and L/C Borrowings and/or Cash Collateralize as applicable, will be promptly after such repatriation applied to the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments repayment of the Revolving Credit Facility made Loans pursuant to this Section 2.05(b), first, shall be applied ratably ) to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableextent provided herein.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Nn Inc)
Mandatory. (i) Within five (5) Business Days after The Borrower shall, no later than the 30th day following the date on which it delivers the financial statements have been delivered pursuant referred to in Section 6.01(a5.03(d) and (but in any event within 120 days after the related Compliance Certificate has been delivered pursuant to Section 6.02(aend of each fiscal year of the Borrower), for the Borrower shall period beginning the date hereof and ending December 31, 1994, prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings equal to 50% of the Excess Cash Flow Percentage amount of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount such period in excess of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment)$4,500,000 and thereafter, such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings equal to 10050% of the amount of Excess Cash Flow for such fiscal year. Each such prepayment of any Advances shall be applied FIRST, to the Term Facility and pro rata to the principal repayment installments thereof payable during the period beginning December 31, 1997 and ending August 15, 2001, SECOND, to the extent of any Term Advances then remaining outstanding, to the Term Facility and pro rata to the remaining principal repayment installments thereof and THIRD, to the extent that no Term Advances remain outstanding, to permanently reduce the Revolving Credit Facility.
(ii) Except as provided in Section 5.02(h)(ii), the Borrower shall, no later than one Business Day after the date of receipt of the Net Cash Proceeds immediately upon receipt thereof from (A) the sale, lease, transfer or other disposition of any assets of Brands or any of its Subsidiaries (other than sales of assets in the ordinary course of business or pursuant to Section 5.02(e)(v)), (B) the incurrence or issuance by such Person (such prepayments to be applied as set forth in clauses (v) Brands or any of its Subsidiaries of any Indebtedness and (viiC) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing sale or issuance 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, such Loan Party or such Subsidiary may reinvest all Brands or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt its Subsidiaries of such Net Cash Proceeds (any capital stock, any securities convertible into or within 545 days if the applicable Loan Party has entered into a binding contract exchangeable for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)capital stock or any warrants, such purchase shall have been consummated (as certified by the Borrower in writing rights or options to the Administrative Agent); and provided furtheracquire capital stock, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings equal to 100% the amount of all such Net Cash Proceeds received therefrom immediately upon receipt thereof by Proceeds. Each such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account prepayment of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) Advances shall be applied in the following order, firstFIRST, to the Term Facility and to the principal repayment installments thereof in direct inverse order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), secondSECOND, to the extent that no Term Advances remain outstanding, to permanently reduce the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of CreditFacility.
(viiii) If The Borrower shall, on each Business Day, pay to the Agent for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize deposit in the L/C Obligations (other than Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in such L/C Borrowings) in an aggregate amount Cash Collateral Account to equal to such excess.
(vii) Prepayments 105% of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to amount by which the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full aggregate Available Amount of all L/C Borrowings, Swing Line Loans and Revolving Letters of Credit Loans then outstanding at such time and exceeds the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableFacility on such Business Day.
Appears in 1 contract
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), If the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(bsubsections (a) or 7.05(c)through (h) of Section 7.05) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of $100,000,000 in the aggregate from the Closing Date to the Maturity Date, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such excess Net Cash Proceeds immediately promptly, and in any event within five Business Days, upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiv) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within five Business Days of the date of such Disposition), and so long as no Event of Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 180 days after the receipt of such Net Cash Proceeds Proceeds, either (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), x) such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent)) or (y) a definitive agreement shall have been entered into committing the Borrower or such Subsidiary to make such purchase; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, by such date shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(ii) Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Equity Interests (other than Excluded Issuances or any sales or issuances of Equity Interests to another Loan Party), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly, and in any event within five Business Days, upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (iv) below).
(iii) Upon the incurrence or issuance by the Borrower or any Debt Issuanceof its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03) after the Closing Date, 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 such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiiv) 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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity the Loans and shall be paid to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility Lenders in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Creditaccordance with their respective Applicable Percentages.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Smucker J M Co)
Mandatory. (i) Within five The Borrower shall, on the ninetieth (590th) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and day following the related Compliance Certificate has been delivered pursuant to Section 6.02(a)end of each of its fiscal years commencing with the fiscal year ending December 31, the Borrower shall 2011, prepay an aggregate principal amount of the Term Loans in an amount equal to 50% of the Excess Cash Flow Percentage amount of Excess Cash Flow for such fiscal year; provided, that if the applicable Leverage Ratio of the Borrower as of the last day of such fiscal year is less than 2.50:1.00 but greater than 1.75:1.00, such percentage for such fiscal year shall be reduced to 25% of the amount of Excess Cash Flow Period Flow; provided, further, that if the Leverage Ratio of the Borrower as of the last day of such fiscal year is less than or equal to 1.75:1.00, such percentage for such fiscal year shall be reduced to 0% of the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) belowExcess Cash Flow.
(ii) If any Loan Party the Borrower or any of its Subsidiaries Disposes of consummates any property (other than any Disposition of any property permitted by Sections 7.05(a)Asset Sale, 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceeds, then the Borrower shall prepay prepay, within three (3) Business Days (or deposit into the Collateral Account pending prepayment, which shall occur within ninety (90) days) of the date of such Asset Sale, an aggregate principal amount of the Term Loans equal to 100% of such all Net Cash Proceeds immediately upon receipt thereof by received therefrom on or prior to such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below)date; provided, however, that, with respect at the option of the Borrower, and as an alternative to any Net Cash Proceeds realized under a Disposition described the prepayment requirement set forth in this Section 2.05(b)(ii2.03(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower Replacement Assets in writing to the Administrative Agentaccordance with Section 7.04(b)(i); and provided further, however, that any to the extent that such Net Cash Proceeds not subject arising from a single Asset Sale or a series of related Asset Sales are equal to such definitive agreement or so reinvested in each case as set forth herein abovegreater than $50,000,000, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, then the Borrower shall prepay an aggregate principal amount of Loans equal only be entitled to 100reinvest up to 50% 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 (vii) below).therefrom;
(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 (ii), (iii) or (iv) of this Section 2.05(b)The Borrower shall, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Net Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained Proceeds by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any of its Subsidiaries in connection with the incurrence or issuance of any Indebtedness (other Loan Party) than Indebtedness permitted to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.be incurred under
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (Aventine Renewable Energy Holdings Inc)
Mandatory. (i) Within five The Borrower shall, on any date (5A) on which a cash equity contribution is deposited in the Borrower Collateral Account as a result of a loan made by First Gibraltar to the Borrower Parent pursuant to the terms of the First Gibraltar Loan Agreement or on which a deposit of amounts paid under or in connection with any Related Documents is made to the Mafco Collateral Account or on which a deposit of amounts constituting Net Cash Proceeds from an Asset Sale is made to the Mafco Collateral Account and (B) either (I) a Default has occurred and is continuing, (II) the Borrower fails to deliver a Look-Forward Certificate or a Deposit Certificate with respect to such deposit in accordance with the terms of Section 5.01(k) or (III) the Marvel IV Required Lenders determine, in their reasonable discretion, within 15 Business Days after financial statements have been delivered following the date of the receipt of the Look-Forward Certificate or within 2 Business Days following the date of the receipt of Deposit Certificate, as the case may be, referred to in clause (B)(II), that the pro forma amounts available to be loaned by First Gibraltar to Borrower Parent, together with amounts received by Mafco pursuant to Section 6.01(a) and 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 related Compliance Certificate has been delivered pursuant to Section 6.02(a)Debt then outstanding under the Revolving Credit Agreement, the Borrower shall prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings equal to an amount equal to the Excess excess of (x) the amount of such cash equity contribution or the amount on deposit in the Mafco Collateral Account, as the case may be, plus any interest on Collateral Investments made with such contribution or deposit over (y) the sum of (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 Revolving Credit Facilities) from such cash equity contribution or such amount on deposit in the Mafco Collateral Account, as the case may be, or from any interest on Collateral Investments made with such contribution or deposit pursuant to the terms of Section 2.05(b)(i) and/or Section 2.06(b)(i) or (ii) of the Revolving Credit Agreement. Each such prepayment of the Facilities shall be applied ratably first to the Tranche B Term Facility and second to the Tranche A Term Facility. Each such prepayment of a Facility shall be made ratably among the Lenders in accordance with their Commitments with respect to such Facility.
(ii) The Borrower shall:
(A) on the date of receipt by any A Company of the Net Cash Flow Percentage Proceeds of Excess 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 Flow Proceeds in respect of any Asset Sale and (y) the preferred stock to be issued by FN Holdings in exchange for the applicable Excess 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 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 or any portion of the 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 or advances made on account of or as a result of the issuance, sale or liquidation of any capital stock (including any securities convertible into or exchangeable for capital stock or any warrants, rights or options to acquire capital stock but excluding any Asset Sale) of, or the sale, issuance or incurrence of any Debt by, any Designated Operating Company, and
(D) on the date of receipt by any A Company of the Net Cash Flow Period less Proceeds from the sale, issuance or incurrence by any A Company of any Debt (other than any sale, issuance or incurrence by Revlon Holdings Inc. of any Debt to any of its Subsidiaries), prepay an aggregate principal amount of all Loans prepaid the Advances comprising part of the same Borrowings equal to an amount equal to the excess of (x) the amount so received (except, in each case, to the extent (1) required pursuant to the terms of any agreement or instruments relating to Debt existing on the date hereof or otherwise approved by the 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 (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 "Facilities" under the Revolving Credit Agreement) from the amounts so received pursuant to the terms of Section 2.05(a)(i2.05(b)(ii) and/or 2.06(b)(i) or (provided that any such payment ii) of the Revolving Credit Loans was accompanied Agreement. Each such prepayment of a Facility shall be applied ratably first to the Tranche B Term Facility and second to the Tranche A Term Facility. Each such prepayment of a Facility shall be made ratably among the Lenders in accordance with their Commitments with respect to such Facility.
(iii) The Borrower shall, on the date of receipt by a permanent reduction 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 of capital stock by the Bank or any Subsidiary of the Bank) or (y) any asset of the Bank, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings equal to 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 (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 "Facilities" under the Revolving Credit CommitmentAgreement) from such Net Cash Proceeds pursuant to the terms of Section 2.05(b)(iii) and/or 2.06(b)(i) or (ii) of the Revolving Credit Agreement. Each such prepayment of the Facilities shall be applied ratably first to the Tranche B Term Facility and second to the Tranche A Term Facility. Each such prepayment of a Facility shall be made ratably among the Lenders in accordance with their Commitments with respect to such Facility.
(iv) The Borrower shall, on the date of receipt by Mafco or any of its Subsidiaries, on or prior to the later of the Term Credit Agreement Termination Date and the "Tranche B Termination Date" under the Revolving Credit Agreement, 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), prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the excess of (A) such prepayments 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 "Facilities" under the Revolving Credit Agreement) from such Net Cash Proceeds pursuant to the terms of Section 2.05(b)(iv) and/or 2.06(b)(ii) or (iii) of the Revolving Credit Agreement. Each such prepayment of the Facilities shall be applied ratably first to the Tranche A Term Facility and second to the Tranche B Facility; provided, however, that if the initial Borrowing under each of the Tranche A Term Facility and the Tranche B Term Facility occurs on the same date, such prepayment shall be applied ratably to the Facilities. Each such prepayment of a Facility shall be applied ratably among the Lenders in accordance with their Commitments with respect to such Facility.
(v) The Borrower shall, on the date of receipt by Mafco or any of its Subsidiaries, on or prior to the later to occur of the Term Credit Agreement Termination Date and the "Tranche B Termination Date" under the Revolving Credit Agreement, of the Net Cash Proceeds from the sale, disposal or other monetization of the News Corp. Preferred ADRs or the New Marvel Shares, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the excess of (x) such Net Cash Proceeds over (y) 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. Each such prepayment of the Facility shall be applied ratably first to the Tranche A Term Facility and second to the Tranche B Term Facility; provided, however, that if the initial Borrowing under each of the Tranche A Term Facility and the Tranche B Term Facility occurs on the same date, such prepayment shall be applied ratably to the Facilities. Each such prepayment of the Facilities shall be applied ratably among the Lenders in accordance with their Commitments with respect to such Facility. Any Net Cash Proceeds remaining after the foregoing application shall be applied as set forth in clauses (vSection 2.05(b)(v) and (vii) belowof the Revolving Credit Agreement.
(iivi) If any Loan Party or any The Borrower shall, on each date that an "Event of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as Default" set forth in clauses (vSection 6.01(a) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default Revolving Credit Agreement shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion prepay an aggregate principal amount of such Net Cash Proceeds the Advances comprising part of the same Borrowings equal to an amount equal to the excess of (x) the amount on deposit in operating assets so long as within 365 days after the receipt Second Mafco Collateral Account over (y) the sum of such Net Cash Proceeds (or within 545 days if 1) the applicable Loan Party has entered into a binding contract for reinvestment amount of such Net Cash Proceeds within 365 days interest and fees then due and payable in respect of such Disposition), such purchase shall have been consummated the Facilities plus (as certified by 2) the Borrower in writing amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent); ) then due and provided furtherpayable plus (3) the aggregate amount paid (including the aggregate amount of interest, however, that any Net Cash Proceeds not subject fees and expenses then due and payable in respect of the "Facilities" under the Revolving Credit Agreement) from such amount on deposit pursuant to the terms of Section 2.05(b)(vii) and/or 2.06(b)(i) or (ii) of the Revolving Credit Agreement. Each such prepayment of the Facilities shall be applied ratably first to the Tranche B Term Facility and second to the Tranche A Term Facility. Each such prepayment of a Facility shall be made ratably among the Lenders in accordance with their Commitments with respect to such definitive agreement or so reinvested in each case as Facility. If an "Event of Default" set forth herein abovein Section 6.01(a) of the Revolving Credit Agreement shall occur and be continuing at the same time as an Event of Default set forth in Section 6.01(a) shall occur and be continuing, such amount shall be immediately applied pro rata to the Facilities and the "Facilities" under the Revolving Credit Agreement and such pro rata amount shall be applied to the prepayment of the Loans Facilities as set forth in this Section 2.05(b)(ii2.05(b)(vi).
(iiivii) Upon any Debt IssuanceThe Borrower shall, the Borrower shall prepay on each date that an aggregate principal amount Event of Loans 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 Default set forth in clauses (vSection 6.01(a) and (vii) 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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after prepay an aggregate principal amount of the receipt Advances comprising part of such cash proceeds the same Borrowings equal to replace or repair an amount equal to the equipment, fixed assets or real property excess of (x) the amount on deposit in the Second Mafco Collateral Account over (y) the sum of (1) the amount of interest then due and payable in respect of which 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. Each such cash proceeds were received (or within 545 days if prepayment of the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied Facilities shall be immediately applied ratably first to the Tranche B Term Facility and second to the Tranche A Term Facility. Each such prepayment of a Facility shall be made ratably among the Lenders in accordance with their Commitments with respect to such Facility. Any amounts remaining on deposit in the Second Mafco Account after the foregoing application shall be applied as set forth in Section 2.05(b)(viii) of the Revolving 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 Revolving Credit Agreement shall occur and be continuing, such amount (less the sum of (1) the amount of interest then due and payable in respect of the "Facilities" under the Revolving Credit Agreement plus (2) the amount of expenses of the "Administrative Agent" under the Revolving Credit Agreement (including the reasonable fees and expenses of counsel to such Administrative Agent) then due and payable) shall be applied pro rata to the Facilities and to the "Facilities" under the Revolving Credit Agreement and such pro rata amount shall be applied to the prepayment of the Loans Facilities as set forth in this Section 2.05(b)(iv2.05(b)(vii).
(vviii) Each If, as a result of the making of any prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments required to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b)2.05, first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required Borrower would incur costs pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b8.04(b), the Borrower may deposit the amount remainingof such prepayment with the Administrative Agent, if any, after for the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization benefit of the remaining L/C Obligations Lenders, in full may a cash collateral account, until the end of the applicable Interest Period at which time such payment shall be retained by made. The Borrower hereby grants to the Administrative Agent, for the benefit of the Lenders, a security interest in all amounts in which the Borrower for use has any right, title or interest which are from time to time on deposit in such cash collateral account and expressly waives all rights (which rights the Borrower hereby acknowledges and agrees are vested exclusively in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan PartyAdministrative Agent) to reimburse the L/C Issuer exercise dominion or the Revolving Credit Lenders, as applicablecontrol over any such amounts.
Appears in 1 contract
Sources: Revolving Credit Agreement (Andrews Group Inc /De/)
Mandatory. (i) If the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by S▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (o) or (p) and other than any event giving rise to an Extraordinary Receipt, which shall be governed by clause (ii) of this Section 2.05(b)) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds promptly, but in any event within five Business Days, after the later of (A) receipt thereof by such Person and (B) the expiration of the 30-day period provided below (such prepayments to be applied as set forth in clauses (v) and (vi) below); provided, however, that with respect to any such Net Cash Proceeds received by or paid to or for the account of the Borrower or any of its Subsidiaries, at the election of the Borrower (as notified by the Borrower to the Administrative Agent not more than 30 days after receiving the Net Cash Proceeds therefrom), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 12 months after the receipt of such Net Cash Proceeds such reinvestment shall have been completed or (y) may enter into a binding commitment to reinvest all or any portion of such Net Cash Proceeds in operating assets so long as such binding commitment is entered into within 12 months after the receipt of such Net Cash Proceeds and within 18 months after the receipt of such Net Cash Proceeds such reinvestment shall have been completed, and, subject to the next succeeding proviso, no prepayment under this Section 2.05(b)(i) shall be required with respect to that portion of such Net Cash Proceeds that the Borrower elects to reinvest in accordance with the immediately preceding clause (x) or (y); and provided, further, however, that any Net Cash Proceeds not so applied in accordance with clause (x) or (y) of the immediately preceding proviso shall be promptly, but in any event within five Business Days, applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(i). Table of Contents
(ii) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries, and not otherwise included in clause (i) or (iv) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom promptly, but in any event within five Business Days, after the later of (A) receipt thereof by such Person and (B) the expiration of the 30 day period provided below (such prepayments to be applied as set forth in clauses (v) and (vi) below); provided, however, that (x) with respect to any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries, at the election of the Borrower (as notified by the Borrower to the Administrative Agent not more than 30 days after receiving the Net Cash Proceeds therefrom), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of such Extraordinary Receipt in operating assets so long as within 12 months after the receipt of such Net Cash Proceeds such reinvestment shall have been completed or (y) may enter into a binding commitment to reinvest all or any portion of such Extraordinary Receipt in operating assets so long as such binding commitment is entered into within 12 months after the receipt of such Net Cash Proceeds and within 18 months after the receipt of such Net Cash Proceeds such reinvestment shall have been completed, and, subject to the next succeeding proviso, no prepayment under this Section 2.05(b)(ii) shall be required with respect to that portion of such Net Cash Proceeds that the Borrower elects to reinvest in accordance with the immediately preceding clause (x) or (y); and provided, further, however, that any Net Cash Proceeds not so applied in accordance with clause (x) or (y) of the immediately preceding proviso shall be promptly, but in any event within five Business Days, applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii).
(iii) 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(a6.02(b) (commencing with the financial statements and certificate in respect of the fiscal year of the Borrower ending September 30, 2012), the Borrower shall prepay an aggregate principal amount of Term Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses clause (v) below) equal to the excess (if any) of (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year of the Borrower covered by such financial statements over (B) the sum of (1) the aggregate principal amount of Term Loans prepaid during such fiscal year pursuant to Section 2.05(a)(i) (and not previously applied by the Borrower in such fiscal year pursuant to the following clause (2) to reduce the prepayment required by this Section 2.05(b)(iii) for the preceding fiscal year) and (vii2) below.at the Borrower’s election, all or any amount of any prepayment of the Term Loans made pursuant to Section 2.05(a)(i) after the end of such fiscal year and on or prior to the date of such prepayment. Table of Contents
(iiiv) If any Loan Party Upon the incurrence or issuance by the Borrower or any of its Subsidiaries Disposes of (x) Indebtedness pursuant to Section 7.02(n) or (y) any property other Indebtedness (other than any Disposition of any property Indebtedness expressly permitted by Sections 7.05(ato be incurred or issued pursuant to Section 7.02 (excluding Section 7.02(n), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon promptly, but in any event within five Business Days, after receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viivi) below).
(ivv) Upon Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) (other than Section 2.05(b)(iv)(x)) shall be applied (i) ratably to each of the Term A Facility and the Term B Facility and (ii) within any Extraordinary Receipt received by or paid such Term Facility, first, in direct order of maturity to or for the account principal repayment installments thereof occurring during the 12 months following the date of such prepayment and, second, ratably to the remaining principal repayment installments of such Term Facility on a pro rata basis. Each prepayment of Term Loans pursuant to Section 2.05(b)(iv)(x) shall be applied (i) between the Term A Facility and the Term B Facility as the Borrower shall direct and (ii) within any Loan Party or such Term Facility, first, in direct order of maturity to the principal repayment installments thereof occurring during the 12 months following the date of such prepayment and, second, ratably to the remaining principal repayment installments of such Term Facility.
(vi) Notwithstanding any of its Subsidiaries, and not otherwise included in the other provisions of clause (iii), (iiiii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or any Event of Default, shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (ii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Term Loans on such date is less than or equal to $1,000,000, 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 (i), (ii) or (iv) of this Section 2.05(b) to be applied to prepay Term Loans exceeds $1,000,000. During such deferral period the Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default, during any such deferral period, the Borrower shall immediately prepay an aggregate principal the Term Loans in the amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments the Borrower and other amounts, as applicable, that are required to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the prepay Term Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of under this Section 2.05(b) shall be applied in the following order, first, (without giving effect to the Term Facility first and to the principal repayment installments thereof in direct order second sentences of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in this clause (viivi)) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Creditbut which have not previously been so applied.
(vivii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and Swing Line Loans and/or Cash Collateralize the such L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiviii) Prepayments of the Revolving Credit Facility made pursuant to clause (vii) of this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.. Table of Contents
Appears in 1 contract
Sources: Credit Agreement (Ashland Inc.)
Mandatory. (i) Within five If (51) 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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any the sale of inventory in the ordinary course of business, the Disposition of Cash Equivalents, or the Disposition of any property permitted assets by Sections 7.05(a), 7.05(b) the Borrower or 7.05(c)a Subsidiary to the Borrower or a Subsidiary) which results in the realization by such Person of Net Cash Proceeds, the Borrower or such Subsidiary shall prepay an aggregate principal amount of Loans 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 (vvi) and (viiix) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party the Borrower, at its election, or such Subsidiary Subsidiary, may reinvest all or any portion of such Net Cash Proceeds from (i) sales of obsolete or worn out equipment no longer used or useful in the operation of the business of the Borrower and its Subsidiaries, or (ii) sales of assets with a fair market value not in excess of $2,000,000, in the aggregate, in any calendar year, provided that the Borrower may retain up to $750,000 of such annual aggregate amount and all amounts between $750,001 and $2,000,000 may be reinvested in operating assets so long as within 365 180 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase reinvestment shall have been consummated or which reinvestment is subject to a binding written agreement with a third party which is not an Affiliate of Borrower which agreement was entered into during such 180-day time period and which reinvestment is consummated within 60 days after such 180-day period expires (as certified by the Borrower in writing to the Administrative AgentAgent upon request); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.05(b)(iv); or (2) the Borrower or any of its Subsidiaries are required to make a prepayment of the Loans from the proceeds of insurance as provided in Section 3(d) of the Security Agreements.
(iiiii) Upon the sale or issuance by the Borrower of any Debt Issuanceof its Equity Interests, the Borrower shall prepay an aggregate principal amount of Loans equal to 10050% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viivi) below).
(iviii) Upon any Extraordinary Receipt received the incurrence or issuance by or paid to or for the account of any Loan Party Borrower or any of its Subsidiaries, and not otherwise included in clause Subsidiaries of any Indebtedness (ii), (iii) other than Indebtedness expressly permitted to be incurred or (iv) of this issued pursuant to Section 2.05(b7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viivi) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility and to the respective principal repayment installments thereof in direct inverse order of maturity second, after the Term Facility had been paid in full, to the following four (4) scheduled payments Accordion Facility and to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining respective principal repayment installments thereof in inverse order of each Term Loan)maturity and, secondafter the Accordion Facility has been paid in full, third, to the Revolving Credit Facility in the manner set forth in clause (viivi) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(viv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, if a Default or Event of Default has occurred shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business;. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a6.13(c) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a6.13(d), the Borrower shall prepay an aggregate principal amount of Loans equal to, if the Total Leverage Ratio for such Fiscal Year is (x) greater than or equal to the Excess Cash Flow Percentage 4.00:1.00, 50%, (y) less than 4:00:1.00, but greater than or equal to 3:00:1.00, 25% or (z) less than 3:00:1.00, 0%, in each case, of Excess Cash Flow for the applicable Fiscal Year covered by such financial statements, commencing with the Fiscal Year ended December 31, 2004; provided, that Excess Cash Flow Period less for the aggregate principal amount Fiscal Year ended December 31, 2004 shall be calculated on a pro forma basis as though the Nu-Gro Acquisition had occurred on the first day of all Loans prepaid pursuant to Section 2.05(a)(i) (such Fiscal Year; provided further that any calculation of Excess Cash Flow by the Borrower may contain customary currency translation estimates, and may further contain deductions in respect of withholding taxes that would be otherwise payable if such payment funds were repatriated to the United States as reasonably determined by a Responsible Officer of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) belowBorrower.
(ii) If any Loan Party If, in each case, Holdings, the Borrower or any of its their respective Subsidiaries Disposes of any property or assets in any single transaction or series of related transactions (other than any Disposition of any property or assets permitted by Sections 7.05(aclauses (a), 7.05(b(b), (c), (d), (e), (f), (h), (i), (m), (n), (r) or 7.05(c)(s) of Section 7.04) which in the aggregate results in the realization receipt by Holdings, the Borrower or such Person Subsidiary of Net Cash ProceedsProceeds in excess of $2,000,000 or receipt of condemnation or casualty proceeds in respect of any asset or property, the Borrower shall prepay an aggregate principal amount of Loans in an amount equal to 100% of such all Net Cash Proceeds immediately upon received therefrom within two Business Days of receipt thereof by Holdings or such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below)Subsidiary; provided, however, that, with respect to any Net Cash Proceeds realized under received in respect of a Disposition or proceeds of insurance and condemnation awards described in this Section 2.05(b)(ii), at the election option of the Borrower (pursuant to a notice in writing as elected by the Borrower in writing to the Administrative Agent on or prior to the date of the receipt of such Dispositionproceeds or awards), and so long as no Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary the Borrower may reinvest all or any portion of such Net Cash Proceeds in operating assets useful in its business so long as (x) within 365 360 days after the receipt of such Net Cash Proceeds Proceeds, such purchase or repair shall have been consummated or (or within 545 days y) if the applicable Loan Party Borrower or the relevant Subsidiary has entered into a binding contract for reinvestment definitive agreement within 360 days after its receipt of such Net Cash Proceeds to purchase or repair such assets within 365 180 days thereafter, within such 180 days after such receipt of such Disposition)Net Cash Proceeds (in each case, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)2.05; and provided still further that any Net Cash Proceeds received in connection with any Disposition of property or assets located outside the United States may contain deductions in respect of withholding taxes that would otherwise be payable if such funds were repatriated to the United States.
(iii) Upon any Debt each Specified Equity Issuance, the Borrower shall prepay an aggregate principal amount of Loans in an amount equal to (x) if the Total Leverage Ratio for the most recent Measurement Period ending on or prior to the date of such sale is greater than or equal to 4.00:1.00, 50%, (y) if the Total Leverage Ratio for the Measurement Period ending on or prior to the date of such sale is less than 4.00:1.00 but greater than or equal to 3.00:1.00, 25% and (z) if the Total Leverage Ratio for the most recent Measurement Period ending on or prior to the date of such sale is less than 3.00:1.00, 0% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower (or after the occurrence of the Holding Company Event, Holdings).
(iv) Upon the incurrence or issuance by Holdings, the Borrower or any of their respective Subsidiaries of (A) any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.02, and (B) any Permitted Subordinated Indebtedness permitted to be incurred pursuant to Section 7.02(a), to the extent not permitted to be retained by the Borrower thereunder, the Borrower shall prepay an aggregate principal amount of Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party Holdings, the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses Subsidiary.
(v) and (vii) below).
(iv) Upon If for any Extraordinary Receipt received by or paid to or for reason the account of Total Outstandings at any Loan Party or any of its Subsidiaries, and not otherwise included time exceed the Aggregate Commitments then in clause (ii), (iii) or (iv) of this Section 2.05(b)effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate principal amount of Loans 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 (vii) below)excess; provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (shall not be required to Cash Collateralize the L/C Obligations pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days this Section 2.05(b)(v) unless after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property prepayment in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment full of the Loans as set forth and Swing Line Loans the Total Outstandings exceed the Aggregate Commitments then in this Section 2.05(b)(iv)effect.
(vvi) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facilities, ratably among the Dollar Term Facility and the Canadian Term Facility and (i) to the next four principal repayment installments thereof of each such Facility in direct order of maturity and (ii) to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)such Facility on a pro-rata basis based on the number of remaining installments and, secondthereafter, to the Revolving Credit Facility (the amount of such prepayment of the Revolving Credit Facility, the “Reduction Amount”) in the manner set forth in clause (vii) of this Section 2.05(b), ; and third, each such prepayment shall be paid to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) Lenders in an aggregate amount equal to such excessaccordance with their respective Pro Rata Shares.
(vii) Prepayments of the The Revolving Credit Facility made pursuant to this Section 2.05(b)shall be permanently reduced by the Reduction Amount on the date of the applicable prepayment and such prepayment shall be, first, shall be applied ratably to the prepay L/C Borrowings and the Swing Line Loansoutstanding at such time until all such L/C Borrowings are paid in full, second, shall be applied ratably to the prepay Swing Line Loans outstanding Revolving Credit Loans, andat such time until all such Swing Line Loans are paid in full, third, shall be applied to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full and, fourth, used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b)thereafter, the amount remaining, if any, after the prepayment in full of all Loans and L/C Borrowings, Swing Line Loans and Revolving Credit Loans Borrowings outstanding at such time and the Cash Collateralization of the remaining L/C Obligations have been Cash Collateralized 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 which has been Cash Collateralized, the such 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.
(viii) Notwithstanding any of the other provisions of Section 2.05(b)(i) through (vii), 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 any Interest Period pertaining to Loans being prepaid, at which time the Administrative Agent shall 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 such Loans in accordance with this Section 2.05(b). Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with this Section 2.05(b).
(ix) Anything contained in this Section 2.05(b) to the contrary notwithstanding, (A) if, following the occurrence of any Disposition 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 proceeds thereof in a particular manner, or to apply by a particular date (an “Application Date”) an amount equal to any such proceeds in a particular manner, in either case in order to excuse the Borrower from being required to make an offer to the holders of any other debt or equity securities of the Borrower (an “Asset Sale Offer”) in connection with such Disposition, and the Borrower shall have failed to so commit or to so apply an amount equal to such proceeds on or prior to 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 proceeds, and, assuming no further application or commitment of an amount equal to such 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 on or prior to the date on which the Borrower would be required to make an Asset Sale Offer an amount equal to such proceeds to be applied to the payment of the Loans and L/C Borrowings and to Cash Collateralize the L/C Obligations in the manner set forth in Section 2.05(b) in such amounts as shall excuse the Borrower from making any such Asset Sale Offer.
Appears in 1 contract
Mandatory. (i) Within Beginning with the fiscal year ending on December 31, 2019, 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) (the “Excess Cash Flow Application Date”), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow excess (if any) of (A) the ECF Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements over (B) to the extent not financed using the proceeds of long-term Indebtedness, (x) the aggregate principal amount of all Term Loans prepaid pursuant to Section 2.05(a)(i2.05(a) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses clause (v) and (viiiv) below) plus (y) the aggregate principal amount of voluntary prepayments under the ABL Credit Agreement (to the extent commitments under the ABL Credit Agreement are permanently reduced by the amount of such prepayments at the time of such prepayment).
(ii) If any Loan Party (1) the Borrower or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(aSection 7.05(b), 7.05(b(c), (d), (e), and (f) or 7.05(c)any Disposition of ABL Priority Collateral) or (2) any Casualty Event (other than in respect of ABL Priority Collateral) occurs, in each case, 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 immediately promptly upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiv) below); provided. Notwithstanding the foregoing, however, that, with respect to any the Borrower may deliver within 45 days of the date of receipt of such Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower certificate to the Administrative Agent on or prior to the date setting forth that portion of such Disposition)Net Cash Proceeds that the Lead Borrower and/or its Restricted Subsidiaries, and as the case may be, intends to, so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days (or within 180 days following the end of such 365 day period if any portion of such proceeds are not so used within such 365 day period but are contractually committed within such 365 day period to be used) after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, the incurrence or issuance by 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause Restricted Subsidiaries of any Indebtedness (iiother than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02 (other than Refinancing Term Loans), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiiv) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, firstapplied, to the Term Facility and to the principal repayment installments thereof Loans in direct order of maturity to maturity.
(v) Notwithstanding any of the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments other provisions of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (viii) or (ii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(viso long as no Default under Section 8.01(a) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this or Section 2.05(b8.01(f), firstor Event of Default shall have occurred and be continuing, shall if, on any date on which a prepayment would otherwise be applied ratably required to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required made pursuant to clause (i), ) or (ii), (iii), or (iv) of this Section 2.05(b), the aggregate amount remainingof Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $10,000,000, if anythe 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 (i) or (ii) of this Section 2.05(b) to be applied to prepay Loans exceeds $10,000,000. Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Borrower shall immediately prepay the 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) (without giving effect to the first sentence of this clause (v)) but which have not previously been so applied.
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to this Section 2.05(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 amount of such prepayment. The Administrative Agent will promptly notify each Term Lender of the contents of any such prepayment notice and of such Term Lender’s ratable portion of such prepayment (based on such Lender’s pro rata share of each relevant Class of the Term Loans). Any Term Lender (a “Declining Term Lender”) may elect, by delivering written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day after the date of such Term Lender’s receipt of notice from the Administrative Agent regarding such prepayment, that the full amount of any mandatory prepayment in full otherwise required to be made with respect to the Term Loans held by such Term Lender pursuant to Section 2.05(b) not be made (the aggregate amount of all L/C Borrowingssuch prepayments declined by the Declining Term Lenders, Swing Line Loans and Revolving Credit Loans outstanding at the “Declined Prepayment Amount”). If a Term Lender fails to deliver notice setting forth such rejection of a prepayment to the Administrative Agent within the time and frame specified above or such notice fails to specify the Cash Collateralization principal amount of the remaining L/C Obligations in full may Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. In the event that the Declined Prepayment Amount is greater than $0, such Declined Prepayment Amount shall be retained by the Borrower. For the avoidance of doubt, the Borrower for use may, at its option, apply any amounts retained in accordance with the ordinary course immediately preceding sentence to prepay loans in accordance with Section 2.05(a).
(vii) Notwithstanding any other provision of its business. Upon this Section 2.05(b) the drawing contrary, to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith that repatriation of any Letter of Credit that has been or all the Net Cash CollateralizedProceeds or Excess Cash Flow of a Foreign Subsidiary giving rise to a prepayment event pursuant to this Section 2.05(b) (i) would have a material adverse tax consequence or (ii) would not be permissible under any applicable Law or would conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or would result in, or be reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary, an amount equal to the funds held as Net Cash Collateral shall Proceeds or Excess Cash Flow so affected will not be required to be applied (without any further action by or notice to or from prepay Loans at the times provided in this Section 2.05(b); provided that the Borrower or hereby agrees, and will cause any other Loan Partyapplicable Subsidiary, to promptly take all commercially reasonable actions required by Law (including applicable local law) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablepermit such repatriation without such material adverse consequences.
Appears in 1 contract
Sources: Credit Agreement (Callaway Golf Co)
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), If the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)Section 7.05) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of $250,000 in the aggregate in any fiscal year of the Borrower, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds in excess of $250,000 in the aggregate in any fiscal year of the Borrower immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below)Person; provided, provided however, that, with respect to any Net Cash Proceeds realized under that if a Disposition described in this Section 2.05(b)(ii), at the election Default or Event of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all any such Net Cash Proceeds received therefrom realized by such Person with respect to any Disposition during the continuance thereof immediately upon receipt thereof of such Net Cash Proceeds by such Loan Party or such Subsidiary Person (such any prepayments pursuant to this Section 2.05(b)(i) to be applied as set forth in clauses (vvi) and (viiix) below).;
(ivii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its SubsidiariesSubsidiaries in excess of $250,000 in the aggregate in any fiscal year of the Borrower, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds in excess of $250,000 in the aggregate in any fiscal year of the Borrower received therefrom immediately upon receipt thereof by such Loan Party the Borrower or such Subsidiary Subsidiary; provided however, that if a Default or Event of Default shall have occurred and be continuing, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of any such Net Cash Proceeds received by such Person with respect to any such Extraordinary Receipts during the continuance thereof immediately upon receipt of such Net Cash Proceeds by such Person (any such prepayments to be applied as set forth in clauses (viii) and (viiv) below); and provided, further, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing 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 the Borrower or such Subsidiary may apply within 365 180 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)received; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(ii).
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility and to the principal repayment installments thereof in direct inverse order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, to the Revolving Credit Facility in the manner set forth in clause (viiv) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiv) 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, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Athenahealth Inc)
Mandatory. (i) Within five (5) ten Business Days after financial statements have been delivered pursuant to receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds from any Asset Sale or series of related Asset Sales permitted by Section 6.01(a8.01(d), (m), (n) and the related Compliance Certificate has been delivered pursuant to Section 6.02(aor (o), the Borrower shall either (1) prepay an aggregate principal amount of Loans or (2) commit to prepay, redeem, purchase, defease or otherwise satisfy other term Indebtedness of the Borrower to the extent permitted by Section 8.05 (and thereafter consummate such prepayment, redemption, purchase, defeasance or satisfaction within an additional 45 days), or any combination of the foregoing in an aggregate amount equal to the Excess Cash Flow Percentage 100% of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) such Net Available Proceeds (provided that with any such payment prepayments of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (viv) and (viivi) below); provided, that at the election of the Borrower (as notified by the Borrower to the Administrative Agent within ten Business Days following the date of receipt of such Net Available Proceeds of such Asset Sale), the Borrower and its Restricted Subsidiaries may reinvest all or any portion of such Net Available Proceeds in assets that are used or useful in the business of the Borrower and the Restricted Subsidiaries (including by way of merger or Investment) (x) within 365 days following the date of receipt of such Net Available Proceeds of such Asset Sale or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding commitment to use such Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause (x), within 180 days after the end of such 365-day period; provided further, however, that any Net Available Proceeds not subject to such legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest the Net Available Proceeds from such Asset Sale as set forth above) shall be immediately applied to the prepayment of the Loans or other term Indebtedness as set forth in this Section 2.04(b)(i).
(ii) If any Loan Party Within ten days after the receipt by the Borrower or any of its Subsidiaries Disposes Restricted Subsidiary of any property (other than Net Available Proceeds from any Disposition Debt Issuance or incurrence of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash ProceedsCredit Agreement Refinancing Indebtedness, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all such Net Cash Available Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viv) and (viivi) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon Within ten days after the receipt by the Borrower or any Debt IssuanceRestricted Subsidiary of any Net Available Proceeds of any Casualty Event, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Available Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (vii) 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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viivi) below); provided, howeverthat, that with respect to any proceeds of insuranceNet Available Proceeds realized with respect to any such Casualty Event, condemnation awards (or payments in lieu thereofA) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within 45 days following the date of receipt of such insurance proceeds, condemnation awards or indemnity paymentsNet Available Proceeds of such Casualty Event), the Borrower and so long as no Default shall have occurred and be continuing, such Loan Party its Restricted Subsidiaries may reinvest all or such Subsidiary may apply within 365 days after the receipt any portion of such cash proceeds to replace Net Available Proceeds in the replacement or repair the equipment, fixed restoration of any properties or assets or real property in respect of which such cash proceeds Net Available Proceeds were received paid or in assets that are used or useful in the business of the Borrower and the Restricted Subsidiaries (including by way of merger or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment Investment) (x) within 365 days following the date of receipt of such receiptNet Available Proceeds of such Casualty Event or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding commitment to use such Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause (x), within 180 days after the end of such 365-day period; and provided, provided further, however, that any cash proceeds Net Available Proceeds not subject to such legally binding commitment or so applied reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest such Net Available Proceeds as set forth above) shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.04(b)(iii); and provided further, however, that with respect to any such replacement or restoration of property or assets constituting Collateral, the Borrower shall take all actions specified in Section 6.09 in order that such property or asset shall constitute Collateral upon the acquisition or construction thereof and (B) if the Borrower and its Restricted Subsidiaries are required to apply any such Net Available Proceeds under the applicable Master Lease to any other purpose, such Net Available Proceeds may be applied to such purpose in lieu of making the prepayment of the Loans required by this Section 2.04(b)(iii); provided however, that any Net Available Proceeds not subject to any such requirements under the applicable Master Lease, or that are subsequently released from such use, shall be immediately applied to the prepayment of the Loans as otherwise set forth in this Section 2.04(b)(iii).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b) shall be applied first (a) ratably to each Class of Term Loans (or, in the following ordercase of New Term Loans, firstExtended Term Loans and Other Term Loans, on a less than pro rata basis if elected in the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment) and (b) (x) for the Term A Loans, to the principal repayment installments thereof on a pro rata basis, (y) for the Term Facility and B Loans, to the principal repayment installments thereof in direct forward order of maturity to the following four and (4z) scheduled payments to be made on each for any other Class of Term Loan Repayment Date arising after Loans, as set forth for such Class in the applicable payment date (on a pro-rata basis among the Closing Date Term Loans Extension Amendment, Refinancing Amendment or Incremental Joinder Agreement and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (viivi) below; provided that, notwithstanding the foregoing, each prepayment pursuant to Section 2.04(b)(ii) above with the proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to the applicable Refinanced Debt. Any prepayment of the Term B Facility after the Third Amendment Effective Date and on or prior to the six (6) month anniversary of the Third Amendment Effective Date pursuant to Section 2.04(b)(ii) in connection with a Repricing Event described in clause (i) of this the definition thereof shall be accompanied by the payment of the fee described in Section 2.05(b2.08(c), and third, to Cash Collateralize outstanding Letters of Credit.
(viv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (MGM Growth Properties Operating Partnership LP)
Mandatory. The Company agrees to make a mandatory prepayment of the Revolving Advances and/or the Swingline Advances:
(i) Within five (5) Business Days after financial statements or if the Revolving Advances and the Swingline Advances have been delivered pursuant repaid in full, make deposits into the Cash Collateral Account to Section 6.01(a) and provide cash collateral for the related Compliance Certificate has been delivered pursuant to Section 6.02(a)Letter of Credit Exposure, on any date on which the Borrower shall prepay an aggregate outstanding principal amount of Loans equal to the Excess Cash Flow Percentage Revolving Advances plus the Letter of Excess Cash Flow for Credit Exposure plus the applicable Excess Cash Flow Period less the aggregate outstanding principal amount of all Loans prepaid pursuant to Section 2.05(a)(ithe Swingline Advances exceeds the lesser of (A) the aggregate Revolving Commitments and (provided that any such payment of B) the Revolving Credit Loans was accompanied by a permanent reduction Collateral Coverage Amount, in the Revolving Credit Commitment), amount of such prepayments to be applied as set forth in clauses (v) and (vii) below.excess;
(ii) If any Loan Party by an amount equal to 100% of the Debt Incurrence Proceeds that the Company or any of its Subsidiaries Disposes receives from each Debt Incurrence after the Closing Date within 30 days after the date of any property each such Debt Incurrence;
(other than any Disposition of any property permitted iii) by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 the Equity Issuance Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); providedexcess of $5,000,000.00 per occurrence that the Company or any of its Subsidiaries receives from each Equity Issuance after March 31, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to 2004 within 30 days after the date of each such DispositionEquity Issuance; and
(iv) by an amount equal to (A) provided that no Event of Default has occurred and is continuing, (1) the amount required by Section 6.03(b)(iii) from the sale of any assets permitted by Section 6.03 (other than sales of assets from the Company to any of its Subsidiaries or from any of its Subsidiaries to the Company or another Subsidiary of the Company), and so long as no Default shall have occurred and be continuingto the extent such amounts are not reinvested in accordance with Section 6.03, such Loan Party or such Subsidiary may reinvest all or any portion on the 95th day after receipt of such amount and (2) 100% of the Net Cash Proceeds in operating excess of $5,000,000.00 that the Company or any of its Subsidiaries receives from Insurance Policies or condemnation awards in connection with a Casualty Event the extent such insurance proceeds or condemnation proceeds are not reinvested in replacement assets so long as of comparable value and utility within 365 90 days after receipt of such proceeds, on the 95th day after receipt of such Net Cash Proceeds Proceeds, or (or within 545 days B) if an Event of Default has occurred and is continuing, then 100% of the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by that the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party Company or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), Subsidiaries receives from 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing sale 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 asset or any other Loan Party) to reimburse the L/C Issuer Insurance Policy or the Revolving Credit Lenders, as applicablecondemnation award in connection with a Casualty Event.
Appears in 1 contract
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Holdings or any of its Subsidiaries Disposes of any property or assets (other than any Disposition of any property or assets permitted by Sections 7.05(a) through (i) and (l), 7.05(b(m) or 7.05(cand (n)) which in the aggregate results in the realization by Holdings or such Person Subsidiary of Net Cash ProceedsProceeds (determined as of the date of such Disposition, whether or not such Net Cash Proceeds are then received by Holdings or such Subsidiary), in excess of the lesser of $15,000,000 and 10% of Consolidated Net Tangible Assets (as defined in the New Subordinated Notes Indenture), determined as of the last day of the most recent fiscal quarter for which a consolidated balance sheet of Holdings and its Subsidiaries has been prepared, in any fiscal year, the Borrower shall prepay prepay, within 180 days of the date of the subject Disposition, an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds immediately upon receipt thereof received therefrom (or, in the case of a Disposition permitted by such Person (such prepayments to be applied as set forth Section 7.05(k), 50% of the first $200,000,000 of Net Cash Proceeds therefrom and 100% of all Net Cash Proceeds in clauses (v) and (vii) belowexcess of $200,000,000 received therefrom); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i) (other than Dispositions pursuant to Section 7.05(k)), at the election option of the Borrower (pursuant to a notice in writing by the Borrower Borrower, and as an alternative to the Administrative Agent on or prior to the date of such Dispositionprepayment requirement set forth in this Section 2.05(b)(i), and so long as no Default shall have occurred and be continuing, such Loan Party Holdings or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating fixed or capital assets to be used in the business of the Borrower and its Subsidiaries so long as within 365 days after the receipt of such Net Cash Proceeds (are used or committed to be so used within 545 days if 12 months after the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing Disposition giving rise to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in obligations under this Section 2.05(b)(ii)2.05.
(iiiii) Upon any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof incurrence or issuance by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party Holdings or any of its Subsidiaries, and not otherwise included in clause Subsidiaries of any Indebtedness (ii), (iii) other than Indebtedness expressly permitted to be incurred or (iv) of this issued pursuant to Section 2.05(b7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt thereof by Holdings or such Subsidiary if received prior to 11:00 a.m. on a Business Day and otherwise on the next Business Day; provided that this provision shall only apply to Indebtedness of such insurance proceeds, condemnation awards Holdings that is of the type described in clause (a) of the definition of "Indebtedness" and exceeds $25,000,000 in the aggregate outstanding at any time.
(iii) Within 30 days after any Disposition (including by way of merger or indemnity payments), and so long as no Default shall have occurred and be continuing, such consolidation) by a Loan Party or any of their respective Subsidiaries of any of the Equity Interests in any such Subsidiary may apply within 365 days after Loan Party's Subsidiaries to a Person other than a Loan Party or any of their respective Subsidiaries, the receipt Borrower shall prepay an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Disposition.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(viiv) 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, Loans and Swing Line Loans and L/C Borrowings Unreimbursed Amounts and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) Prepayments unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans the Total Revolving Credit Outstandings exceed the Revolving Credit Facility made at such time.
(v) Each prepayment of Loans pursuant to this Section 2.05(b)) shall be applied, first, shall be applied ratably to each of the L/C Borrowings Term A Facility and the Swing Line LoansTerm B Facility (subject to Section 2.05(c)) and to the principal repayment installments thereof on a pro rata basis and, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to in the manner set forth in clause (i), (ii), (iii), or (ivvi) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) Within five If (5A) 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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Company or any of its Subsidiaries Disposes of any property (Collateral other than Dispositions under Section 7.24(ii) or Section 7.24(iii) or any Disposition of any property permitted by Sections 7.05(a)Equity Interests in Restricted Subsidiaries that hold only Excluded Assets, 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of $1,000,000 or (B) the Company or any of its Restricted Subsidiaries suffers an Event of Loss which results in the realization by such Person of Net Cash Proceeds in excess of $1,000,000, the Borrower Company shall prepay in each case prepay, within three Business Days after receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person Proceeds; provided that (such prepayments to be applied as set forth in clauses (vx) and (vii) below); provided, however, that, with respect to all or a portion of any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i)(A), at the election of the Borrower Company (pursuant to a notice in writing as notified by the Borrower Company to the Administrative Agent on or prior to the date such third Business Day following receipt of such DispositionNet Cash Proceeds of Dispositions of Collateral), and so long as no Default shall have occurred and be continuing, such Loan Party the Company or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds arising from any Disposition of Fuse Network Assets or Equity Interests in a Person, all material assets of which constitute Fuse Network Assets, plus up to $75,000,000 in the aggregate of other Net Cash Proceeds, in operating assets so long as which constitute Collateral within 365 180 days after the receipt of such Net Cash Proceeds and (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing y) with respect to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject of casualty insurance or condemnation awards realized due to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment an Event of the Loans as set forth Loss described in this Section 2.05(b)(ii2.05(b)(i)(B).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower Company (pursuant to a notice in writing as notified by the Borrower Company to the Administrative Agent on or prior to the date of such third Business Day following receipt of such Net Cash Proceeds of casualty insurance proceeds, or condemnation awards or indemnity paymentsawards), and so long as no Default shall have occurred and be continuing, such Loan Party the Company or such Subsidiary may apply within 365 180 days (or, if such replacement or repair could not reasonably completed within 180 days, such period shall be extended for a reasonable period of time to permit completion of such replacement and repair so long as the replacement or repair of the asset or assets that suffered the Event of Loss is being diligently pursued by the Company or such Subsidiary) after the receipt of such cash proceeds Net Cash Proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds Net Cash Proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)received; and provided, provided further, however, that any cash proceeds Net Cash Proceeds not so applied reinvested shall be immediately applied to the prepayment of the Loans.
(ii) If the Company Disposes of any Core Excluded Asset (other than where such Disposition is pursuant to a Tax Incentive Transfer) which results in the realization by the Company of Net Cash Proceeds, the Company shall prepay an aggregate principal amount of Loans as set forth equal to 50% of the portion of such Net Cash Proceeds that is not reinvested in operating assets of the Company and its Restricted Subsidiaries within 365 days after receipt of such Net Cash Proceeds; provided that if any Default shall have occurred and be continuing, the Company shall not be permitted to reinvest such Net Cash Proceeds in operating assets.
(iii) Upon the incurrence or issuance by the Company or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness permitted under clauses (i) and (iii) through (ix) of Section 7.14 and Permitted Financings), the Company shall prepay an aggregate principal amount of Loans equal to (x) 100% of all Net Cash Proceeds received therefrom at any time that the Total Leverage Ratio is greater than 3.50:1.00, (y) 50% of all Net Cash Proceeds received therefrom at any time that the Total Leverage Ratio is greater than 3.00:1.00 but less than or equal to 3.50:1.00, and (z) 0% of all Net Cash Proceeds received therefrom at any time that the Total Leverage Ratio is less than or equal to 3.00:1.00, in the case of clauses (y) and (z), provided that such Indebtedness was incurred in compliance with this Section 2.05(b)(ivCredit Agreement (otherwise such percentage shall be 100%).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower Company 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.
(viiv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Loans pro rata to the Revolving Credit LoansFacility and each Incremental Facility, if any, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or ) through (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower Company for use in the ordinary course of its business, and the Revolving Credit Facility and each Incremental Facility, if any shall be automatically and permanently reduced on a pro rata basis by the Reduction Amount as set forth in Section 2.06(b)(i). 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 Company or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
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Mandatory. Subject to Section 2.07(h), (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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If if any Loan Party or any of its Subsidiaries Disposes disposes of any property (other than (x) any Disposition of any property permitted by Sections 7.05(a), 7.05(bSection 7.05 (other than clauseclauses (d) and (f) thereof) and (y) any Asbestos Insurance Settlement so long as such proceeds are used or 7.05(c)committed to be used to reimburse Parent or any of its Subsidiaries or make payments in respect of related claims against Parent or any of its Subsidiaries and defense costs related thereto) which that results in the realization by such Person the Loan Parties and their respective Subsidiaries of Net Cash ProceedsProceeds in the aggregate for all such dispositions in excess of $50,000,000 in any Fiscal Year (excluding any portion thereof that is reinvested as provided below), the Borrower Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds immediately upon (to the extent in excess of $50,000,000 in such Fiscal Year) within three Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viivi) below); provided, however, that, with respect to any such Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii)realized, at the election of either the US Borrower or the European Borrower (pursuant to a notice in writing as notified by the such Borrower to the Administrative Agent on or prior to the date of such Dispositiondisposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as as, within 365 days 12 months after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase shall have been consummated (as certified by or, if the Borrower in writing to Parent or its Subsidiaries have entered into binding contractual commitments for reinvestment within such 12-month period, not so reinvested within 18 months following the Administrative Agentdate of receipt of such Net Cash Proceeds); and provided further, however, that any such Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied subject to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(iiii) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt Issuance(other than Debt expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower Borrowers shall prepay an aggregate principal amount of Term Loans 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 clause (v) and (viivi) below).
(ivii) Upon any Extraordinary Receipt (other than proceeds of any Asbestos Insurance Settlement or Asbestos Judgment, so long as such proceeds are used or committed to be used to reimburse Parent or any of its Subsidiaries or make payments in respect of related claims against Parent or any of its Subsidiaries and defense costs related thereto, as applicable) 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) and (ii), (iii) or (iv) of this Section 2.05(b), the Borrower Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within three Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses clause (vvi) below).
(iii) Upon the delivery of financial statements pursuant to Section 6.17(b) and the related Compliance Certificate pursuant to Section 6.17(b)(v) (other than in respect of the Fiscal Year ending December 31, 2011), the Borrowers shall prepay an aggregate principal amount of Term Loans equal to the excess (if any) of (A) the Applicable Excess Cash Flow Percentage of Excess Cash Flow for the Fiscal Year covered by such financial statements over (B) the same of (x) aggregate principal amount of Term Loans prepaid pursuant to Section 2.05(a)(i) and (vii) belowy); provided, howeverto the extent accompanied by a voluntary reduction to the total aggregate amount of Multicurrency RCF Commitments and/or US Dollar RCF Commitments in an amount equal to such prepayment, that with respect to any proceeds of insurance, condemnation awards (Revolving Credit Loans or payments in lieu thereof) or indemnity payments, at the election of the Borrower (Swing Line Loans prepaid pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity paymentsSection 2.05(a), and so long as no Default shall have occurred and in each case, with internally generated funds (such prepayments to be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ivclause (vi) below).
(iv) Upon the expiry of the Certain Funds Period, the Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of (I) any amounts held in the Overadvance Account at such time and (II) any amount in excess thereof which constitutes proceeds of the Term Facilities which have not been used for Certain Funds Purposes (such prepayments to be applied as set forth in clause (vi) below).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, (subject to Section 2.05(b)(vii)) ratably to each of the Term A-1 Facility, the Term A-2 Facility, the Term A-3 Facility, the Term A-4 Facility and the Term B Facility and to the principal repayment installments thereof on a pro-rata basis.
(vi) The US Borrower shall notify the Administrative Agent in direct order writing of maturity to the following four (4) scheduled payments any optional or mandatory repayment of Term B Loans required to be made pursuant to Section 2.05(a) or 2.05(b) at least three (3) Business Days prior to the date of such repayment. Each such notice shall specify the date of such repayment and provide a reasonably detailed calculation of the amount of such repayment. The Administrative Agent will promptly notify each Lender holding Term B Loans of the contents of the US Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Each such Lender may reject all or a portion of its pro rata share of any voluntary or mandatory repayment (such declined amounts, the “Declined Proceeds”) of Term B Loans required to be made pursuant to Section 2.05(a) or 2.05(b) respectively, by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the US Borrower no later than 5:00 P.M. on each Term Loan Repayment Date arising the Business Day after the applicable payment date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the voluntary or mandatory repayment, as the case may be, of Term B Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term B Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such voluntary or mandatory repayment, as the case may be, of Term B Loans to which such Lender is otherwise entitled. Any Declined Proceeds of a mandatory prepayment of Term B Loans required to be made pursuant to Section 2.05(b) shall be (i) applied ratably to each of the Term A-1 Facility, the Term A-2 Facility, the Term A-3 Facility and the Term A-4 Facility and to the principal repayment installments thereof on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date or (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, ii) to the Revolving Credit Facility in extent there are no Term A-1 Loans, Term A-2 Loans, Term A-3 Loans or Term A-4 Loans outstanding at such time, retained by the manner set forth in US Borrower. Any Declined Proceeds of voluntary prepayments of Term B Loans made pursuant to Section 2.05(a) shall be retained by the US Borrower. Notwithstanding the above, this clause (vii) shall not apply in respect of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
any voluntary prepayment if (viA) 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 all Term A-1 Loans, Swing Line Term A-2 Loans, Term A-3 Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) Term A-4 Loans have been repaid in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), full or (ivB) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Term B Loans and Revolving Credit Loans outstanding at are being repaid with such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by voluntary or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablemandatory prepayment.
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Sources: Credit Agreement (Colfax CORP)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered If the Borrower or any of its Subsidiaries Disposes of any property pursuant to Section 6.01(a7.05(i) and which results in the related Compliance Certificate has been delivered pursuant to Section 6.02(a)realization by such Person of aggregate Net Cash Proceeds in excess of $50,000,000 in any fiscal year, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds immediately upon in excess of $50,000,000 within three Business Days after receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) belowSection 2.05(b)(iii)); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within three Business Days after the date of such Disposition), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets that are used or useful in the business of the Borrower and its Subsidiaries or apply such Net Cash Proceeds toward any Permitted Acquisition or other Investment permitted hereunder, in each case, so long as within 365 days after the receipt of such Net Cash Proceeds (Proceeds, such reinvestment shall have been consummated or within 545 days if the applicable Loan Party has Borrower or such Subsidiary shall have entered into a binding contract agreement for such reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent), which agreement requires consummation to occur not later than the 425th day after receipt of such Net Proceeds; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(iiiii) Upon If any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Extraordinary Receipt results in Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments in excess of $50,000,000 to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its SubsidiariesSubsidiaries in any fiscal year, and such Net Cash Proceeds are not otherwise included in clause (ii), (iii) or (ivi) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon in excess of $50,000,000 within three Business Days after receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) belowSection 2.05(b)(iii)); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to within three Business Days after the date of receipt of such insurance proceeds, condemnation awards or indemnity paymentsNet Cash Proceeds), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets that are used or useful in the business of the Borrower and its Subsidiaries or apply such Net Cash Proceeds toward any Permitted Acquisition or other Investment permitted hereunder, in each case, so long as within 365 days after the receipt of such cash proceeds to replace Net Cash Proceeds, such reinvestment shall have been consummated or repair the equipment, fixed assets Borrower or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has Subsidiary shall have entered into a binding contract to repair, replace or restore such property or make agreement for such reinvestment within 365 days (as certified by the Borrower in writing to the Administrative Agent), which agreement requires consummation to occur not later than the 425th day after receipt of such receipt)Net Proceeds; and provided, further, however, that any cash proceeds Net Cash Proceeds not subject to such definitive agreement or so applied reinvested shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(iv2.05(b)(ii).
(viii) Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in to the following order, firstTerm Loan (and, to the extent provided in the definitive loan documentation thereto, to any Incremental Term Facility Loans or Incremental Equivalent Debt, ratably (or less than ratably, but in no event greater than ratably)) and to the principal repayment installments thereof in direct order of maturity to the following next four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)principal repayment thereof, and thereafter, to the remaining amortization installments pursuant to Section 2.07(a) on a pro-pro rata basis amongto the remaining payments basis. Subject to Section 2.16, any such prepayments shall be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, paid to the Revolving Credit Lenders under the applicable Facility in accordance with their respective Applicable Percentages in respect of the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Creditrelevant Facilities.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiv) Prepayments Except as otherwise provided in Section 2.16, prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.05(b)(iv), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan PartyParty or any Defaulting Lender that has provided Cash Collateral) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable. Within the parameters of the applications set forth above, prepayments pursuant to this Section 2.05(b) shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct 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 shall be accompanied by interest on the principal amount prepaid through the date of prepayment.
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Mandatory. (i) Within five Subject to clause (5iv) Business Days after financial statements have been delivered pursuant to of this Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a2.03(b), if the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(bunder Section 7.05 (other than clause (d) or 7.05(cthereof)) which results in the realization by such Person of Net Cash ProceedsProceeds or the Borrower or any of its Restricted Subsidiaries receives any Net Cash Proceeds of casualty insurance or condemnation awards, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds immediately upon (or in the case of a Restricted Subsidiary that is not directly or indirectly wholly owned by the Borrower, in such lesser amount of Net Cash Proceeds as are actually received by the Borrower or a wholly owned Restricted Subsidiary of the Borrower), together with all accrued interest thereon and any additional amounts required pursuant to Section 3.03, such prepayment to occur (subject to the provisions below and to clause (iv) of this Section 2.03(b)) within 10 Business Days following receipt thereof of such Net Cash Proceeds by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below)Person; provided, however, that, (x) with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.03(b)(i), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower 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, such Loan Party the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as assets, provided that, (i) within 365 180 days after the receipt of such Net Cash Proceeds, the Borrower or Restricted Subsidiary, as applicable, has reinvested the Net Cash Proceeds into operating assets or (ii) where such Net Cash Proceeds have not been reinvested within 180 days after the receipt of such Net Cash Proceeds, the Borrower or within 545 days if the applicable Loan Party has Restricted Subsidiary shall have entered into a binding contract agreement for such reinvestment of and such Net Cash Proceeds within 365 days of such Disposition), such purchase reinvestment shall have been consummated within 180 days after entering into such reinvestment agreement (as certified by the Borrower in writing to the Administrative Agent); and (y) with respect to any Net Cash Proceeds of casualty insurance or condemnation awards, 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 Net Cash Proceeds of casualty insurance or condemnation awards), and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Restricted Subsidiary may apply within 180 days after the receipt of such Net Cash Proceeds to replace or repair the equipment, fixed assets or real property in respect of which such Net Cash Proceeds were received; and provided further, however, that any Net Cash Proceeds not subject referred to such definitive agreement above in (x) or (y) to be so reinvested in each case as set forth herein above, shall be immediately deposited in the Cash Collateral Account pending such reinvestment and, provided, further, that any amount referred to above in (x) or (y) which is not so reinvested within the time specified therein shall be applied to the prepayment of the Loans as set forth in clause (iv) of this Section 2.05(b)(ii2.03(b).
(iiiii) Upon Subject to clause (iv) of this Section 2.03(b), upon the sale or issuance by the Borrower or any Debt Issuanceof its Restricted 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 Term Loans equal to 50% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary.
(iii) Subject to clause (iv) of this Section 2.03(b), upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness not permitted under Section 7.02, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Restricted Subsidiary.
(iv) Upon any Extraordinary Receipt received by or paid Notwithstanding anything to or for the account of any Loan Party or any of its Subsidiariescontrary herein, prepayments made and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments required to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing made by the Borrower under this Section 2.03(b), together with repayments made and required to be made by the Administrative Agent on or Borrower under Section 2.04, (a) prior to July 29, 2013 shall not exceed an aggregate amount of $155,000,000, (b) prior to July 29, 2014 shall not exceed an aggregate amount of $190,000,000, (c) prior to July 29, 2015 shall not exceed an aggregate amount of $225,000,000, and (d) prior to the date Maturity Date shall not exceed an aggregate amount of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)$260,000,000.
(v) Each prepayment of Term Loans made prior to the Maturity Date pursuant to the foregoing provisions of this Section 2.05(b2.03(b) shall be applied in the following orderapplied, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity maturities, to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining any principal repayment installments of each the Term Loan)Facility that are due within 12 months after the date of such prepayment, second, on a pro rata basis, to the Revolving Credit other principal repayment installments of the Term Facility, and shall be paid to the Lenders under the Term Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Creditaccordance with their respective Applicable Percentages.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Mandatory. There shall become due and payable and Borrower shall prepay the Loans without premium or penalty, in the following amounts and at the following times:
(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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow if for the applicable Excess Cash Flow Period less any reason the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment Outstanding Amount of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment)Loans, such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Swing Line Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time L/C Obligations exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) ), as applicable, in an aggregate amount equal to such excess.;
(viiii) Prepayments no later than five (5) Business Days following the date on which any Loan Party or any of its Subsidiaries (or Administrative Agent as loss payee or assignee) receives any Major Casualty Proceeds, an amount equal to one-hundred percent (100.0%) of such Major Casualty Proceeds; provided that so long as no Event of Default has occurred and is continuing, the recipient (other than Administrative Agent) of any Major Casualty Proceeds may reinvest such Major Casualty Proceeds within three hundred sixty five (365) days of receipt of such Major Casualty Proceeds (or within three hundred sixty-five (365) days of such Major Casualty Proceeds becoming subject to a binding commitment to reinvest such Major Casualty Proceeds within one hundred eighty (180) days of receipt thereof), in assets of a kind then used or usable in the business of the Revolving Credit Facility Loan Parties; provided, however, that if the applicable Loan Party or Subsidiary does not intend to fully reinvest such Major Casualty Proceeds, or if the time period set forth in this sentence expires without such Loan Party or Subsidiary having reinvested such Major Casualty Proceeds, Borrowers shall within two (2) Business Day prepay the Loans in an amount equal to such Major Casualty Proceeds;
(iii) no later than five (5) Business Days following the date of receipt by any Loan Party or any of its Subsidiaries of the proceeds from the issuance and sale of any Indebtedness (other than the proceeds of Indebtedness permitted pursuant to Section 7.02), an amount equal to one hundred percent (100%) of the Net Cash Proceeds of such issuance and sale; and
(iv) no later than five (5) Business Days following the date on which any Loan Party or any of its Subsidiaries receive the proceeds of any Disposition made pursuant to Sections 7.05(g) or 7.05(j) or a Disposition not otherwise permitted under this Agreement, an amount equal to one hundred percent (100%) of the Net Cash Proceeds of such Disposition; provided that no prepayment shall be required pursuant to this Section 2.05(b), first, shall be applied ratably to 2.05(c)(iv) unless and until the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, aggregate Net Cash Proceeds received during any Fiscal Year from Dispositions exceeds $1,000,000 (in which case all Net Cash Proceeds in excess of such amount shall be used to make prepayments pursuant to this Section 2.05(c)(iv)); provided further that so long as no Event of Default has occurred and is continuing, the recipient of such Net Cash Collateralize the remaining L/C Obligations; andProceeds may reinvest such Net Cash Proceeds within three hundred sixty five (365) days of receipt of such Net Cash Proceeds (or within three hundred sixty-five (365) days of such Net Cash Proceeds becoming subject to a binding commitment to reinvest such Net Cash Proceeds within one hundred eighty (180) days of receipt thereof), in assets of a kind then used or usable in the case of prepayments business of the Revolving Credit Facility required pursuant Loan Parties; provided, however, that if the applicable Loan Party or Subsidiary does not intend to clause (i), (ii), (iii)fully reinvest such Net Cash Proceeds, or if the time period set forth in this sentence expires without such Loan Party or Subsidiary having reinvested such Net Cash Proceeds, Borrowers shall within two (iv2) of this Section 2.05(b), Business Day prepay the Loans in an amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at equal to such time and the Net Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableProceeds.
Appears in 1 contract
Sources: Credit Agreement (NOODLES & Co)
Mandatory. Subject to Section 2.07(gh), (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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If if any Loan Party or any of its Subsidiaries Disposes disposes of any property (other than (x) any Disposition of any property permitted by Sections 7.05(a), 7.05(bSection 7.05 (other than clause (d) and (f) thereof) and (y) any Asbestos Insurance Settlement so long as such proceeds are used or 7.05(c)committed to be used to reimburse Parent or any of its Subsidiaries or make payments in respect of related claims against Parent or any of its Subsidiaries and defense costs related thereto) which that results in the realization by such Person the Loan Parties and their respective Subsidiaries of Net Cash ProceedsProceeds in the aggregate for all such dispositions in excess of $50,000,000 in any Fiscal Year (excluding any portion thereof that is reinvested as provided below), the Borrower Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds immediately upon (to the extent in excess of $50,000,000 in such Fiscal Year) within three Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viivi) below); provided, however, that, with respect to any such Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii)realized, at the election of either the US Borrower or the European Borrower (pursuant to a notice in writing as notified by the such Borrower to the Administrative Agent on or prior to the date of such Dispositiondisposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as as, within 365 days 12 months after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase shall have been consummated (as certified by or, if the Borrower in writing to Parent or its Subsidiaries have entered into binding contractual commitments for reinvestment within such 12-month period, not so reinvested within 18 months following the Administrative Agentdate of receipt of such Net Cash Proceeds); and provided further, however, that any such Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied subject to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Colfax CORP)
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below[Reserved].
(ii) If any Loan Party of the Borrower or any of its Subsidiaries 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 of and other than the Permitted ▇▇▇▇▇▇▇▇▇ Disposition) which, in any property permitted by Sections 7.05(a)such case, 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceeds, the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such the Net Cash Proceeds received therefrom in excess of $10,000,000 in the aggregate for the Net Cash Proceeds received from all such Dispositions during the immediately upon receipt thereof by 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 Person Disposition occurred (such prepayments to be applied as set forth in clauses (v) and (viiviii) below, as applicable); provided, however, 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 Borrower Borrowers (pursuant to a notice in writing as notified by the Borrower Borrowers to the Administrative Agent on or prior to no later than 45 days after the date end of the fiscal quarter during which such DispositionDisposition occurred), and so long as no Event Default shall have occurred and be continuing, such Loan Party or such Subsidiary the Borrowers may reinvest all or any portion of such Net Cash Proceeds in operating assets of the Borrowers so long as (A) within 365 330 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase reinvestment shall have been consummated (as certified by 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 Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to date such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)was executed.
(iii) Upon the occurrence of a Recovery Event with respect to the Borrowers which, in any Debt Issuancesuch case, results in the realization by such Person of Net Cash Proceeds, the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds received therefrom in excess of $10,000,000 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 Borrowers of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary the Borrowers (such prepayments 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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ivapplicable).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term Facility and to the principal repayment installments thereof as directed by the Borrowers and specified in direct the notice of prepayment, (provided that in the event that the Borrowers do not specify the order in which to apply prepayments, the Borrowers shall be deemed to have elected that such prepayment be applied to reduce the scheduled installments of principal of such Term Loans in reverse order of maturity to the following four (4maturity) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, to the Revolving Credit Facility without any reduction of the Revolving Credit Commitments in the manner set forth in clause (viiviii) of this Section 2.05(b). Subject to Section 2.18 and clause (vi) below, and third, such prepayments shall be paid to Cash Collateralize outstanding Letters the Lenders in accordance with their respective Applicable Percentages in respect of Creditthe relevant Facilities.
(vi) The Borrowers shall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans pursuant to Section 2.05(b)(ii) or (iii), at least five (5) Business Days prior to the date on which such payment is due. Such notice shall specify the date of such 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 amounts so declined, the “Declined Amounts”) of any mandatory prepayment by giving notice of such election in writing (each, a “Rejection Notice”) 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, the Borrower 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.
(viiviii) 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, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments Loans without any reduction of the Revolving Credit Facility required pursuant to clause (i)Commitments, (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableeach case.
Appears in 1 contract
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition)Borrowers, and so long as no Event of Default shall have occurred and be continuingcontinuing under Sections 8.01(a), (b) (solely with respect to Section 6.02(a) and Section 7.10) and (f), such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties or their Subsidiaries so long as within 365 days after the receipt of such Net Cash Proceeds Proceeds, either (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), x) such purchase shall have been consummated or (as certified by y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement; provided further, that the Lead Borrower shall notify the Administrative Agent (I) if the Borrowers do not elect to reinvest Net Cash Proceeds in writing respect of any Disposition individually in excess of $5,000,000 and (II) if the Lead Borrower delivers the notice in the preceding clause (I) to the Administrative Agent)Agent and such reinvestment is not consummated within the timelines set forth herein; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any Debt Issuanceof its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within three (3) Business Days of receipt thereof by such Loan Party Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (ii), (iii) or (ivi) of this Section 2.05(b), the Borrower Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all such Net Cash Proceeds received therefrom immediately upon within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, insurance or condemnation awards (or payments in lieu thereof) or indemnity payments), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments)Borrowers, and so long as no Event of Default shall have occurred and be continuingcontinuing under Sections 8.01(a), (b) (solely with respect to Section 6.02(a) and Section 7.10) and (f), such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or their Subsidiaries or (or within 545 days if the applicable Loan Party has entered y) enter into a binding contract definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; provided further, that the Lead Borrower shall notify the Administrative Agent (I) if the Borrowers do not elect to repair, replace reinvest such Net Cash Proceeds in respect of proceeds of insurance or restore such property or make condemnation awards individually in excess of $5,000,000 and (II) if the Lead Borrower delivers the notice in the preceding clause (I) to the Administrative Agent and such reinvestment is not consummated within 365 days of such receipt)the timelines set forth herein; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, solely to the Term Facility (ratably to the Alternative Currency Term Facility and the U.S. Dollar Term Facility, or if each individual Lender holds identical Applicable Percentages of the Alternative Currency Term Facility and the U.S. Dollar Term Facility, to the Alternative Currency Term Facility and/or the U.S. Dollar Term Facility as elected by the Lead Borrower) and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity to for the following first four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)installments, second, pro rata to the Revolving Credit Facility in remaining installments (excluding the manner set forth in Maturity Date installment) and third, to the Maturity Date installment.
(vi) Notwithstanding any of the other provisions of clause (viii), (iii) or (iv) of this Section 2.05(b), so long as no Event of Default shall have occurred and thirdbe continuing under Sections 8.01(a), (b) (solely with respect to Section 6.02(a) and Section 7.10) and (f), if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Collateralize outstanding Letters of CreditProceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $10,000,000, the Borrowers shall not be obligated to make such prepayment.
(vivii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrower 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.
(viiviii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause [Intentionally Omitted].
(i), (ii), (iii), or (ivix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount remainingof such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, if any, after an amount equal to the prepayment portion of such Net Cash 72 Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in full of all L/C Borrowings, Swing Line Loans material adverse tax consequences to Holdings and Revolving Credit Loans outstanding at such time and its Subsidiaries on a consolidated basis. Within the Cash Collateralization parameters of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralizedapplications set forth above, the funds held as Cash Collateral prepayments pursuant to this Section 2.05(b) shall be applied (first to Base Rate Loans, then to Term SOFR Loans and then to Alternative Currency Loans. All prepayments under this Section 2.05(b) shall be subject to Section 3.07, but otherwise without any further action premium or penalty, and shall be accompanied by or notice to or from interest on the Borrower or any other Loan Party) to reimburse principal amount prepaid through the L/C Issuer or the Revolving Credit Lenders, as applicabledate of prepayment.
Appears in 1 contract
Sources: Credit Agreement (Novanta Inc)
Mandatory. (i) Within five (5) 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) (commencing with the fiscal year ending July 31, 2015), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage excess (if any) of (A) 50% of Consolidated Excess Cash Flow for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements minus (B) the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i2.03(a)(i) during such fiscal year (provided other than to the extent that any such payment prepayment is funded with the proceeds of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitmentan incurrence of Indebtedness or an issuance or sale of Equity Interests), such prepayments to be applied as set forth in clauses clause (v) below; provided that such percentage shall be reduced to 25% or 0% if the Consolidated Leverage Ratio of the Borrower and (vii) belowits Subsidiaries as of the last day of the applicable fiscal year is less than 3.25 to 1.00 or 2.75 to 1.00, respectively, as evidenced by the most recently delivered Compliance Certificate.
(ii) If any Loan Party the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(aSection 7.05 (except pursuant to Section 7.05(g), 7.05(bSection 7.05(h), Section 7.05(l) or 7.05(cSection 7.05(n)) 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 the Net Cash Proceeds immediately upon received from such Disposition no later than two Business Days following receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that, with respect to provided that any such Net Cash Proceeds realized under a Disposition described shall only be required to be so applied to repay the Loans to the extent not reinvested in this Section 2.05(b)(ii), at property that is useful in the election business of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to and its Subsidiaries within 18 months of the date of such DispositionDisposition or contractually agreed to be so reinvested within such 18 month period and actually reinvested within 24 months of the date of such Disposition (it being understood that such prepayment shall be due no later than ten Business Days following the expiration of such 18 month period or 24 month period, as applicable, to the extent the Net Cash Proceeds are not reinvested at such time); provided, further, that pending any such reinvestment (or repayment), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds shall be deposited in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable a Designated Term Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated Account (as certified defined in the Intercreditor Agreement) to the extent required by the Borrower in writing Intercreditor Agreement. Notwithstanding the foregoing, any prepayments pursuant to this clause (ii) shall be subject to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)Intercreditor Agreement.
(iii) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of (x) any Specified Refinancing Debt Issuanceor (y) any other Indebtedness (other than, without limiting clause (x) above, Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03), the Borrower shall prepay an aggregate principal amount of Loans under the Facility or New Term Facility being refinanced (in the case of clause (x) above) or Loans under all outstanding facilities hereunder on a pro rata basis (in the case of clause (y) above), in either case, equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (v) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries, and not otherwise included in clause (ii), or (iii) of this Section 2.03(b), other than Excluded Extraordinary Receipts, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within ten Business Days of receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (vii) below).
. Notwithstanding the foregoing, any prepayments pursuant to this clause (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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower subject to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Intercreditor Agreement.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.03(b) shall be applied in the following order, first, in direct order to the Term Facility and to the next four scheduled principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans facility and the Additional Term Loans)second, and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Creditapplicable facility on a pro-rata basis.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Diamond Foods Inc)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and The Borrower shall, on the related Compliance Certificate has been delivered pursuant to Section 6.02(a)90th day following the end of each Fiscal Year, commencing with the Borrower shall Fiscal Year ending December 31, 2009, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings under the Term B Facility (and, on a ratable basis, any Series of New Term Loans outstanding, if any) in an amount equal to (A) if the Excess Cash Flow Percentage Leverage Ratio as of the end of such Fiscal Year shall be greater than 3.25:1.0, 50% of Excess Cash Flow for such Fiscal Year less the applicable principal amount of voluntary prepayments made by the Borrower in accordance with the terms of Section 2.06(a) on the Advances under the Term B Facility or any Series of New Term Loans during such Fiscal Year and (B) otherwise, 0% of Excess Cash Flow Period less for such Fiscal Year. Each such prepayment shall be applied first ratably to the installments of the Term B Facility (and, if applicable, each Series of New Term Loans) and second to prepay any outstanding Revolving Loans.
(ii) The Borrower shall:
(A) on the date that is five Business Days after the receipt of any Net Cash Proceeds by the Borrower or any of its Subsidiaries (other than VITAL, unless VITAL has become a direct or indirect wholly-owned Subsidiary of the Borrower) described in clause (a) or (d) of the definition of “Net Cash Proceeds” (other than any such Net Cash Proceeds of a Teleco Net Cash Proceeds Event), prepay an aggregate principal amount of all Loans the Advances in an amount equal to the amount of such Net Cash Proceeds in accordance with clause (E) below;
(B) on the date of receipt of any Net Cash Proceeds by the Borrower or any of its Subsidiaries (other than VITAL, unless VITAL has become a direct or indirect wholly-owned Subsidiary of the Borrower), described in clause (b) of the definition of “Net Cash Proceeds”, prepay an aggregate principal amount of the Advances in an amount equal to the amount of such Net Cash Proceeds in accordance with clause (E) below;
(C) on the date of receipt of any Net Cash Proceeds by the Borrower or any of its Subsidiaries (other than VITAL, unless VITAL has become a direct or indirect wholly-owned Subsidiary of the Borrower), described in clause (c) of the definition of “Net Cash Proceeds” prepay an aggregate principal amount of the Advances in an amount equal to the amount of such Net Cash Proceeds in accordance with clause (E) below; provided that in the case of each of clauses (A), (B) and (C) above, if any Net Cash Proceeds are received by a direct or indirect non-wholly owned Subsidiary of the Borrower, the amount of any such Net Cash Proceeds required to be prepaid pursuant to Section 2.05(a)(iclause (A), (B) or (provided that any C), as applicable, shall be equal to the amount of such payment Net Cash Proceeds multiplied by the Borrower’s percentage ownership of the outstanding Equity Interests of the non-wholly owned Subsidiary receiving such Net Cash Proceeds; and
(D) if any Teleco Net Cash Proceeds Event shall occur with respect to any Teleco, no prepayment shall be required pursuant to this Section 2.06(b)(ii) until the first date such Teleco shall pay any cash dividend to its parent entity after the date of such Teleco Net Cash Proceeds Event and such prepayment shall be in an amount equal to the lesser of (1) the amount of such dividend and (2) the Net Cash Proceeds resulting from such Teleco Net Cash Proceeds Event.
(E) Each such prepayment shall be applied first ratably to the installments of the Term B Facility (and, if applicable, each Series of New Term Loans), and second to prepay any outstanding Revolving Credit Loans was accompanied by a (but without any permanent reduction in the Revolving Credit CommitmentFacility), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(iiiii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a)The Borrower shall, 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceedson each Business Day, the Borrower shall prepay an aggregate principal amount of Loans the Revolving Credit Advances comprising part of the same Borrowings, the Letter of Credit Advances and the Swing Line Advances and deposit an amount in the L/C Collateral Account in an amount equal to 100% of such Net Cash Proceeds immediately upon receipt thereof the amount by such Person which (such prepayments to be applied as set forth in clauses (vA) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election sum of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% (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 Net Cash Proceeds received therefrom immediately upon receipt thereof by Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility on such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Business Day.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its SubsidiariesThe Borrower shall, and not otherwise included in clause (ii)on each Business Day, (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower pay to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property for deposit in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than Collateral Account an amount sufficient to cause the aggregate amount on deposit in the L/C Borrowings) in an aggregate amount Collateral Account to equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after by which the prepayment in full aggregate Available Amount of all L/C Borrowings, Swing Line Loans and Revolving Letters of Credit Loans then outstanding at such time and exceeds the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableFacility on such Business Day.
Appears in 1 contract
Mandatory. (i) Within Commencing with the fiscal year ending December 31, 2013, 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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (viiviii) below) equal to the positive amount (if any) rounded down to an integral of $100,000 of (A) 50% of Excess Cash Flow for the fiscal year covered by such financial statements minus (B) the aggregate principal amount of Term Loans prepaid pursuant to Section 2.04(a)(i) during such period and the aggregate principal amount of Term Loans prepaid pursuant to Section 2.17 to the extent funded with internally generated cash (it being understood and agreed that such amount shall be the amount of the applicable Discounted Voluntary Prepayment as opposed to the par value of the Term Loans prepaid).
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(apursuant to Section 7.05(g), 7.05(b) or 7.05(c)) 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 immediately upon no later than the second Business Day following the receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viiviii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.04(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition)Borrower, and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets (including, without limitation, Monitoring Contracts) so long as within 365 180 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent)consummated; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.04(b)(ii).
(iii) Upon any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof incurrence or issuance by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause Subsidiaries of any Indebtedness (ii), (iii) other than Indebtedness expressly permitted to be incurred or (iv) of this issued pursuant to Section 2.05(b7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments 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 (ii) and (iii) of this Section 2.04(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom no later than the second Business Day following the receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity paymentsthat, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments)Borrower, and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 180 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)received; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.04(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b) shall be applied in the following orderapplied, first, subject to the Section 2.11(g) and any intercreditor arrangement established pursuant to Section 2.16, to each Term Facility pro rata and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date with respect to such Term Facility; provided that any Extended Term Loans and the Additional or Refinancing Term Loans), and thereafter, Loans may be prepaid on a pro-less (but not greater) than pro rata basis amongto if agreed to by the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans Lenders holding such Loans; and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (viiviii) of this Section 2.05(b2.04(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) Notwithstanding any of the other provisions of clause (ii), (iii) or (iv) of this Section 2.04(b), so long as no Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (ii), (iii) or (iv) of this Section 2.04(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 $1,000,000, 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 (ii), (iii) or (iv) of this Section 2.04(b) to be applied to prepay Loans exceeds $3,000,000. During such deferral period the Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.04(b). Upon the occurrence of a Default during any such deferral period, following delivery of a written request by the Administrative Agent, the Borrower shall immediately prepay the 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 2.04(b) (without giving effect to the first and second sentences of this clause (vi)) but which have not previously been so applied.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.04(b)(vii) unless after the prepayment in full of the Revolving Credit Loans the Total Revolving Credit Outstandings exceed the Revolving Credit Facility then in effect.
(viiviii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansBorrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, following the occurrence and during the continuation of an Event of Default, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), and the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans Borrowings and Revolving Credit Loans outstanding at such time and the any required Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) Within Commencing with the fiscal year ending December 31, 2021, within the later of (x) 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)6.02(b) and (y) ninety-five (95) days after the end of such fiscal year, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow excess (if any) of (A) the ECF Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements over (B) (1) the aggregate principal amount of all Term Loans prepaid pursuant to Section 2.05(a)(i2.05(a) or 10.13 or repurchases of the Term Loans made pursuant to Section 10.06 during such fiscal year (and not previously applied by the Borrower pursuant to the following clause (2) to reduce the prepayment required by this Section 2.05(b)(i) for the preceding fiscal year) and (2) at the Borrower’s election, all or any amount of Term Loans prepaid pursuant to Section 2.05(a) or 10.13 or repurchases of the Term Loans made pursuant to Section 10.06 after the end of such fiscal year and on or prior to the date of such prepayment; provided that any such payment prepayments were not made with proceeds of any Indebtedness, Disposition, equity issuance, Extraordinary Receipts or other proceeds that would not be included in calculating Consolidated EBITDA for the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), applicable fiscal year (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided that no such prepayment shall be required for the fiscal year ending December 31, 2022.
(ii) If any Loan Party the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(bSection 7.05) or 7.05(c)) which that results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds immediately upon within ten (10) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to the date of within such Dispositionten (10) Business Day period), and so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may reinvest all such Net Cash Proceeds up to an amount not to exceed $50,000,000 during the term of the Term Facility (the “Reinvestment Amount”) in Collateral used or any portion useful in the operation of the Borrower or its Subsidiaries (or committed to be reinvested pursuant to a definitive agreement) within 12 months and, if so committed to be reinvested, so long as such reinvestment is actually completed within 18 months after such Disposition; provided further that (i) the Borrower shall not be required to reinvest such Net Cash Proceeds in operating Collateral to the extent such Net Cash Proceeds result from the disposition of property that is not, and is not otherwise required to be, Collateral and instead may reinvest such proceeds in assets that do not constitute Collateral so long as such assets are used or useful in the operation of the Borrower or its Subsidiaries and (ii) the Borrower may invest up to $10,000,000 of the Reinvestment Amount each fiscal year in non- Collateral assets so long as within 365 days after such assets are used or useful in the receipt operation of the Borrower or its Subsidiaries. Notwithstanding anything in this Section 2.05(b) to the contrary, (x) 100% of the Net Cash Proceeds of any Disposition of ABL Priority Collateral shall first be offered to permanently reduce the commitments in respect of the ABL Facility on a pro rata basis among the ABL Lenders, (y) at the Borrower’s option and with customary notice, any ABL Lender may elect not to accept its pro rata portion of any such mandatory prepayment and (z) any such prepayment amount so declined shall otherwise be applied in accordance with this Section 2.05(b); provided that to the extent such Net Cash Proceeds result from a Disposition of ABL Priority Collateral, upon the occurrence of the ABL Obligations Payment Date (or within 545 days if as defined in the applicable Loan Party has entered into a binding contract for reinvestment of ABL Intercreditor Agreement), such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth Obligations in accordance with this Section 2.05(b)(ii2.05(b).
(iii) Upon any Debt Issuance, the incurrence or issuance by 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause Subsidiaries of any Indebtedness (ii), (iii) other than Indebtedness expressly permitted to be incurred or (iv) of this issued pursuant to Section 2.05(b7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon within five (5) Business Days of receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Nn Inc)
Mandatory. (iA) Within five Immediately upon any voluntary or involuntary (5including casualty losses or condemnations) 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), the sale or disposition by any Borrower shall prepay an aggregate principal amount or its Subsidiaries of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) property or assets (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitmentother than sales or dispositions which qualify as Permitted Dispositions), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Borrower shall prepay, without penalty or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceedspremium, the Borrower shall prepay outstanding Obligations in accordance with clause (d) below in an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions to the extent that the aggregate amount of such Net Cash Proceeds immediately upon receipt thereof received by Borrowers and its Subsidiaries (and not paid to Agent as a prepayment of the Obligations) for all such Person (such prepayments to be applied as set forth sales or dispositions shall exceed $250,000 in clauses (v) and (vii) below)any fiscal year; provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as (1) no Default or Event of Default shall have occurred and be is continuing, (2) Administrative Borrower shall have given Agent prior written notice of Borrowers’ and their respective Subsidiaries’ intention to apply such Loan Party monies to the costs of replacement of the property or such Subsidiary may reinvest all or any portion assets which are the subject of such Net Cash Proceeds sale or disposition or the cost of purchase or construction of other assets useful in operating assets so long the business of any of the Borrowers or their respective Subsidiaries, (3) the monies are held in a cash collateral account in which Agent has a perfected first-priority security interest, (4) Borrowers have Excess Availability of not less than $3,500,000 as of the date on which Agent receives the notice set forth in clause (2) above, and (5) a Borrower or a Subsidiary of a Borrower completes such replacement, purchase or construction within 365 180 days after the initial receipt of such Net Cash Proceeds (monies, such Borrower shall have the option to apply such monies to the costs of replacement of the property or within 545 days if assets which are the applicable Loan Party has entered into a binding contract for reinvestment subject of such Net Cash Proceeds within 365 days sale or disposition or the costs of purchase or construction of other assets useful in the business of any of the Borrowers or their respective Subsidiaries unless and to the extent that such Disposition), such purchase applicable period shall have been consummated (as certified by expired without such replacement, purchase or construction being made or completed, in which case, any amounts remaining in the Borrower in writing cash collateral account shall be paid to the Administrative Agent); Agent and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case applied as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth . Nothing contained in this subclause (A) shall permit any Borrower or its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 2.05(b)(ii)6.4.
(iiiB) Upon Immediately upon the receipt by any Debt IssuanceBorrower or its Subsidiaries of any Extraordinary Receipts in any fiscal year, such Borrower shall prepay, without premium or penalty, the Borrower shall prepay outstanding Obligations in accordance with clause (d) below in an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Extraordinary Receipts.
(ivC) Upon Immediately upon the issuance or incurrence by any Extraordinary Receipt received by Borrower or paid to or for the account its Subsidiaries of any Loan Party Indebtedness (other than Indebtedness permitted by Section 6.1), or the issuance by any Borrower or its Subsidiaries of any shares of its Subsidiaries, and not otherwise included in clause or their Stock (iiother than Excluded Issuances), (iii) or (iv) of this Section 2.05(b), the such Borrower shall prepay the outstanding principal of the Obligations in accordance with clause (d) in an aggregate principal amount of Loans equal to 100% of all the Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party Borrower or its Subsidiaries in connection with such Subsidiary (issuance or incurrence. Concurrent with each such prepayments prepayment, Borrowers shall pay to be applied Agent, for the ratable account of the Lenders holding the Obligations prepaid, the applicable prepayment premium as set forth in clauses the Fee Letter. The provisions of this subsection (vC) and (vii) below); provided, however, that with respect shall not be deemed to be implied consent to any proceeds such issuance or incurrence otherwise prohibited by the terms and conditions of insurancethis Agreement.
(D) Within 10 days of delivery to Agent and Lenders of audited financial statements pursuant to Section 5.3, condemnation awards (or payments in lieu thereof) or indemnity payments, at commencing with the election delivery to Agent and Lenders of the Borrower (financial statements for the fiscal year 2005 or, if such financial statements are not delivered to Agent and Lenders on the date such statements are required to be delivered pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceedsSection 5.3, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 10 days after the receipt of date such cash proceeds statements are required to replace be delivered to Agent and Lenders pursuant to Section 5.3, Borrowers shall prepay, without penalty or repair premium, the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment outstanding principal amount of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility Advances in the manner set forth in accordance with clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowingsd) in an aggregate amount equal to such excess.
(vii) Prepayments 50% of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings Excess Cash Flow of Borrowers and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at their Subsidiaries for such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablefiscal year.
Appears in 1 contract
Sources: Credit Agreement (Buca Inc /Mn)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and If the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Specified U.S. Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Domestic Subsidiaries directly or indirectly Disposes of any property (other than any Disposition of any property permitted by comprising U.S. ABL Priority Collateral pursuant to Sections 7.05(a), 7.05(b7.05(l) or 7.05(c)(o) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of $10,000,000 (in any transaction or series of related transactions), (A) the Borrower Borrowers shall prepay an aggregate principal amount of Revolving Credit Loans and Cash Collateralize L/C Obligations equal to the lesser of (x) 100% of such Net Cash Proceeds immediately upon and (y) Total Outstandings, within two (2) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viixi) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), ) or (B) at the election option of the Borrower (pursuant to a notice in writing by Specified U.S. Borrower, 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, such Loan Party Borrowers or such Subsidiary may Subsidiaries shall reinvest all or any portion of such Net Cash Proceeds in operating U.S. ABL Priority Collateral or other assets so long as useful in the business of the Specified U.S. Borrower and its Domestic Subsidiaries within 365 three hundred and sixty-five (365) days after the following receipt of such Net Cash Proceeds (or within 545 days or, if the applicable Loan Party Specified U.S. Borrower or the relevant Subsidiary, as applicable, has entered into a binding contract for reinvestment contractually committed within 365 days following receipt of such Net Cash Proceeds within 365 to reinvest such Net Cash Proceeds, 545 days following receipt of such DispositionNet Cash Proceeds); provided that, at the option of the Specified U.S. Borrower, any investment in the business of the Specified U.S. Borrower or one of its Domestic Subsidiaries made within 180 days prior to the date of receipt of such purchase shall Net Cash Proceeds may be deemed to have been consummated (as certified by the Borrower in writing to the Administrative Agent)made during such 365-day period; and provided further, however, that that, if any such Net Cash Proceeds are not subject to such definitive agreement or so reinvested in each case as set forth herein aboveon or prior to the last day of the applicable reinvestment period, an amount equal to any such Net Cash Proceeds shall within five (5) Business Days be immediately applied to the prepayment of Loans and the Cash Collateralization of L/C Obligations in accordance with clause (A) of this Section 2.05(b)(i).
(ii) If the Specified U.S. Borrower or any of its Subsidiaries directly or indirectly Disposes of any property pursuant to Sections 7.05(l) or (o) comprising Canadian ABL Priority Collateral which results in the realization by such Person of Net Cash Proceeds in excess of $10,000,000 (in any transaction or series of related transactions), (A) the Canadian Borrower shall prepay an aggregate principal amount of Canadian Revolving Credit Loans and Cash Collateralize Canadian L/C Obligations equal to the lesser of (x) 100% of such Net Cash Proceeds and (y) Total Canadian Outstandings, within two (2) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clause (xi) below) or (B) at the option of the Specified U.S. Borrower, the Specified U.S. Borrower or such Subsidiaries shall reinvest all or any portion of such Net Cash Proceeds in Canadian ABL Priority Collateral or other assets useful in the business of the Specified U.S. Borrower and its Subsidiaries within three hundred and sixty-five (365) days following receipt of such Net Cash Proceeds (or, if the Specified U.S. Borrower or the relevant 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 that, at the option of the Specified U.S. Borrower, any investment in the business of the Specified U.S. Borrower or one of its Subsidiaries made within 180 days prior to the date of receipt of such Net Cash Proceeds may be deemed to have been made during such 365-day period; provided further, however, that, if any such Net Cash Proceeds are not so reinvested on or prior to the last day of the applicable reinvestment period, an amount equal to any such Net Cash Proceeds shall within five (5) Business Days be applied to the prepayment of Loans and the Cash Collateralization of L/C Obligations in accordance with clause (A) of this Section 2.05(b)(ii).
(iii) Upon receipt of any Debt IssuanceExtraordinary Receipt resulting in the realization of Net Cash Proceeds by the Specified U.S. Borrower and its Domestic Subsidiaries in excess of $10,000,000 (in any transaction or series of related transactions) in respect of U.S. ABL Priority Collateral, and not otherwise included in clause (i) of this Section 2.05(b), (A) the Borrower Borrowers shall prepay an aggregate principal amount of Revolving Credit Loans and Cash Collateralize L/C Obligations equal to the lesser of (x) 100% of all such Net Cash Proceeds received therefrom immediately upon and (y) Total Outstandings, within fifteen (15) Business Days of receipt thereof by such Loan Party the Specified U.S. Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viixi) below), or (B), at the option of the Specified U.S. Borrower, the Borrowers or such Subsidiaries shall reinvest all or any portion of such Net Cash Proceeds in U.S. ABL Priority Collateral or other assets useful in the business of the Specified U.S. Borrower and its Domestic Subsidiaries within three hundred and sixty-five (365) days following receipt of such Net Cash Proceeds (or, if the Specified U.S. Borrower or the relevant 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 that, at the option of the Specified U.S. Borrower, any investment in the business of the Specified U.S. Borrower or one of its Domestic Subsidiaries made within 180 days prior to the date of receipt of such Net Cash Proceeds may be deemed to have been made during such 365-day period; provided further, however, that, if any such Net Cash Proceeds are not so reinvested on or prior to the last day of the applicable reinvestment period, an amount equal to any such Net Cash Proceeds shall within five (5) Business Days be applied to the prepayment of Loans and the Cash Collateralization of L/C Obligations in accordance with clause (A) of this Section 2.05(b)(iii).
(iv) Upon receipt of any Extraordinary Receipt received resulting in the realization of Net Cash Proceeds by the Specified U.S. Borrower and its Subsidiaries in excess of $10,000,000 (in any transaction or paid to or for the account series of any Loan Party or any related transactions) in respect of its SubsidiariesCanadian ABL Priority Collateral, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), (A) the Canadian Borrower shall prepay an aggregate principal amount of Canadian Revolving Credit Loans and Cash Collateralize Canadian L/C Obligations equal to the lesser of (x) 100% of all such Net Cash Proceeds received therefrom immediately upon and (y) Total Canadian Outstandings, within fifteen (15) Business Days of receipt thereof by such Loan Party the Specified U.S. Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viixi) below) or (B) at the option of the Specified U.S. Borrower, the Specified U.S. Borrower or such Subsidiaries shall reinvest all or any portion of such Net Cash Proceeds in Canadian ABL Priority Collateral or other assets useful in the business of the Specified U.S. Borrower and its Subsidiaries within three hundred and sixty-five (365) days following receipt of such Net Cash Proceeds (or, if the Specified U.S. Borrower or the relevant 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 with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity paymentsprovided that, at the election option of the Specified U.S. Borrower, any investment in the business of the Specified U.S. Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or one of its Subsidiaries made within 180 days prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall Net Cash Proceeds may be deemed to have occurred and be continuing, been made during such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)365-day period; and provided, provided further, however, that that, if any cash proceeds such Net Cash Proceeds are not so applied reinvested on or prior to the last day of the applicable reinvestment period, an amount equal to any such Net Cash Proceeds shall within five (5) Business Days be immediately applied to the prepayment of Loans and the Loans as set forth Cash Collateralization of L/C Obligations in accordance with clause (A) of this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the lesser of (x) the Borrowing Base at such time (except as a result of Overadvance Loans or Protective Advances permitted under Sections 2.01(e), (f) and (g)) and (y) the Revolving Credit Facility at such time, the Borrowers shall immediately prepay their respective Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize their respective L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess. If for any reason the Total U.S. Revolving Credit Outstandings at any time exceed the lesser of (x) the U.S. Borrowing Base at such time (except to the extent constituting U.S. Overadvance Loans permitted under Section 2.01(e) or U.S. Protective Advances permitted under Section 2.01(g)) and (y) the U.S. Revolving Credit Facility at such time, the U.S. Borrowers shall immediately prepay U.S. Revolving Credit Loans, U.S. Swing Line Loans and U.S. L/C Borrowings and/or Cash Collateralize the U.S. L/C Obligations (other than the U.S. L/C Borrowings) in an aggregate amount equal to such excess. If for any reason the Total Canadian Revolving Credit Outstandings at any time exceed the lesser of (x) the Canadian Borrowing Base at such time (except to the extent constituting Canadian Overadvance Loans permitted under Section 2.01(f) or Canadian Protective Advances permitted under Section 2.01(g)) and (y) the Canadian Revolving Credit Facility at such time, the Canadian Borrower shall immediately prepay Canadian Revolving Credit Loans, Canadian Swing Line Loans and Canadian L/C Borrowings and/or Cash Collateralize the Canadian L/C Obligations (other than the Canadian L/C Borrowings) in an aggregate amount equal to such excess.
(vi) If, as a result of any negative fluctuations in the Dollar Equivalent of Canadian Dollars (or other foreign currencies in which outstanding Letters of Credit may be denominated), the Total Canadian Revolving Credit Outstandings exceeds 110% of the aggregate amount of the Canadian Revolving Credit Commitments as then in effect, the Canadian Borrower shall, if requested (through the Administrative Agent) by the Required Canadian Lenders prepay the Canadian Revolving Credit Loans (or Cash Collateralize the Canadian Letters of Credit) within three (3) Business Days following such Borrower’s receipt of such request in such amounts as shall be necessary so that after giving effect thereto the Total Canadian Revolving Credit Outstandings does not exceed the Canadian Revolving Credit Commitments.
(vii) If for any reason the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any U.S. Revolving Credit Lender (including, for this purpose, such Lender’s Applicable Percentage of the aggregate Outstanding Amount of all U.S. Overadvance Loans and all U.S. Protective Advances), plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. L/C Obligations, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. Swing Line Loans exceed such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment, the U.S. Borrowers shall immediately prepay U.S. Revolving Credit Loans, U.S. Swing Line Loans and U.S. L/C Borrowings and/or Cash Collateralize the U.S. L/C Obligations (other than the U.S. L/C Borrowings) in an aggregate amount equal to such excess.
(viii) If for any reason the aggregate Outstanding Amount of the Canadian Revolving Credit Loans of any Canadian Revolving Credit Lender (including, for this purpose, such Lender’s Applicable Percentage of the aggregate Outstanding Amount of all Canadian Overadvance Loans and all Canadian Protective Advances), plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian L/C Obligations, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian Swing Line Loans exceed such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment, the Canadian Borrower shall immediately prepay Canadian Revolving Credit Loans, Canadian Swing Line Loans and Canadian L/C Borrowings and/or Cash Collateralize the Canadian L/C Obligations (other than the Canadian L/C Borrowings) in an aggregate amount equal to such excess.
(ix) If for any reason the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender (including, for this purpose, such Lender’s Applicable Percentage of the aggregate Outstanding Amount of all Overadvance Loans and all Protective Advances), plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans exceed such Lender’s Commitment, then in each case the 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.
(viiA) If any U.S. Overadvance Loan shall remain outstanding for 90 consecutive days, the U.S. Borrowers shall immediately prepay such U.S. Overadvance Loan and (B) if any Canadian Overadvance Loan shall remain outstanding for 90 consecutive days, the Canadian Borrower shall immediately prepay such Canadian Overadvance Loan.
(xi) Prepayments of the each Revolving Credit Facility made pursuant to this Section 2.05(b)) shall be applied as follows:
(A) with respect to prepayments resulting from any Disposition of, or the receipt of any Extraordinary Receipts in respect of, any U.S. ABL Priority Collateral, such prepayments, first, shall be applied ratably to pay accrued and unpaid interest in respect of the outstanding U.S. L/C Borrowings and the outstanding U.S. Swing Line LoansLoans (including U.S. Overadvance Loans and U.S. Protective Advances) then being prepaid, second, shall be applied ratably to prepay the principal of any U.S. Overadvance Loans and U.S. Protective Advances, if any, third, shall be applied ratably to the outstanding U.S. Revolving Credit Loans (including Swing Line Loans), and, thirdfourth, shall be used to Cash Collateralize the remaining U.S. L/C Obligations; andand the amount remaining, if any, after the prepayment in full of all U.S. L/C Borrowings, U.S. Swing Line Loans and U.S. Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining U.S. L/C Obligations in full, in each case under the U.S. Revolving Credit Facility, shall be applied to the Canadian Revolving Credit Facility, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (iorder set forth in Section 2.05(b)(xi)(B), (ii), (iii), or (iv) of this Section 2.05(b); and thereafter, the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time time, and the Cash Collateralization of the remaining L/C Obligations in full under each Revolving Credit Facility, may be retained by the Borrower Borrowers for use in the ordinary course of its business. Upon ; provided that, 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 any Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the applicable Revolving Credit Lenders, as applicable.; and
(B) with respect to prepayments resulting from any Disposition of, or the receipt of any Extraordinary Receipts in respect of, any Canadian ABL Priority Collateral, such prepayments, first, shall be applied ratably to pay accrued and unpaid interest in respect of the outstanding Canadian L/C Borrowings and the outstanding Canadian Swing Line Loans (including Canadian Overadvance Loans and Canadian Protective Advances) then being prepaid, second, shall be applied ratably to prepay the principal of any Canadian Overadvance Loans and Canadian Protective Advances, if any, third, shall be applied ratably to the outstanding Canadian Revolving Credit Loans (including Swing Line Loans), and, fourth, shall be used to Cash Collateralize the remaining Canadian L/C Obligations; and the amount remaining, if any, after the prepayment in full of all Canadian L/C Borrowings, Canadian Swing Line
Appears in 1 contract
Sources: Credit Agreement (Nortek Inc)
Mandatory. (i) Within Beginning with the fiscal year ending on December 31, 2019, 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) (the “Excess Cash Flow Application Date”), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow excess (if any) of (A) the ECF Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements over (B) to the extent not financed using the proceeds of long-term Indebtedness, (x) the aggregate principal amount of all Term Loans prepaid pursuant to Section 2.05(a)(i2.05(a) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses clause (v) and (viiiv) below) plus (y) the aggregate principal amount of voluntary prepayments under the ABL Credit Agreement (to the extent commitments under the ABL Credit Agreement are permanently reduced by the amount of such prepayments at the time of such prepayment).
(ii) If any Loan Party (1) the Borrower or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(aSection 7.05(b), 7.05(b(c), (d), (e), and (f) or 7.05(c)any Disposition of ABL Priority Collateral) or (2) any Casualty Event (other than in respect of ABL Priority Collateral) occurs, in each case, 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 immediately promptly upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiv) below); provided. Notwithstanding the foregoing, however, that, with respect to any the Borrower may deliver within 45 days of the date of receipt of such Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower certificate to the Administrative Agent on or prior to the date setting forth that portion of such Disposition)Net Cash Proceeds that the Lead Borrower and/or its Restricted Subsidiaries, and as the case may be, intends to, so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days (or within 180 days following the end of such 365 day period if any portion of such proceeds are not so used within such 365 day period but are contractually committed within such 365 day period to be used) after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, the incurrence or issuance by 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause Restricted Subsidiaries of any Indebtedness (iiother than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02 (other than Refinancing Term Loans), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiiv) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, firstapplied, to the Term Facility and to the principal repayment installments thereof Loans in direct order of maturity to maturity.
(v) Notwithstanding any of the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments other provisions of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (viii) or (ii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(viso long as no Default under Section 8.01(a) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this or Section 2.05(b8.01(f), firstor Event of Default shall have occurred and be continuing, shall if, on any date on which a prepayment would otherwise be applied ratably required to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required made pursuant to clause (i), ) or (ii), (iii), or (iv) of this Section 2.05(b), the aggregate amount remainingof Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $10,000,000, if anythe 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 (i) or (ii) of this Section 2.05(b) to be applied to prepay Loans exceeds $10,000,000. Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Borrower shall immediately prepay the 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) (without giving effect to the first sentence of this clause (v)) but which have not previously been so applied.
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to this Section 2.05(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 amount of such prepayment. The Administrative Agent will promptly notify each Term Lender of the contents of any such prepayment notice and of such Term Lender’s ratable portion of such prepayment (based on such Lender’s pro rata share of each relevant Class of the Term Loans). Any Term Lender (a “Declining Term Lender”) may elect, by delivering written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day after the date of such Term Lender’s receipt of notice from the Administrative Agent regarding such prepayment, that the full amount of any mandatory prepayment in full otherwise required to be made with respect to the Term Loans held by such Term Lender pursuant to Section 2.05(b) not be made (the aggregate amount of all L/C Borrowingssuch prepayments declined by the Declining Term Lenders, Swing Line Loans and Revolving Credit Loans outstanding at the “Declined Prepayment Amount”). If a Term Lender fails to deliver notice setting forth such rejection of a prepayment to the Administrative Agent within the time and frame specified above or such notice fails to specify the Cash Collateralization principal amount of the remaining L/C Obligations in full may Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. In the event that the Declined Prepayment Amount is greater than $0, such Declined Prepayment Amount shall be retained by the Borrower. For the avoidance of doubt, the Borrower for use may, at its option, apply any amounts retained in accordance with the ordinary course immediately preceding sentence to prepay loans in accordance with Section 2.05(a).
(vii) Notwithstanding any other provision of its business. Upon this Section 2.05(b) the drawing contrary, to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith that repatriation of any Letter of Credit that has been or all the Net Cash CollateralizedProceeds or Excess Cash Flow of a Foreign Subsidiary giving rise to a prepayment event pursuant to this Section 2.05(b) (i) would have a material adverse tax consequence or (ii) would not be permissible under any applicable Law or would conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or would result in, or be reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary, an amount equal to the funds held as Net Cash Collateral shall Proceeds or Excess Cash Flow so affected will not be required to be applied (without any further action by or notice to or from prepay Loans at the times provided in this Section 2.05(b); provided that the Borrower or hereby agrees, and will cause any other Loan Partyapplicable Restricted Subsidiary, to promptly take all commercially reasonable actions required by Law (including applicable local law) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablepermit such repatriation without such material adverse consequences.
Appears in 1 contract
Sources: Credit Agreement (Callaway Golf Co)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and Following the related Compliance Certificate has been delivered pursuant to Section 6.02(a)end of each fiscal year of the Company, commencing with the fiscal year ending September 30, 2018, the Borrower Company shall prepay Loans in an aggregate principal amount of Loans equal to (A) the Excess Cash Flow applicable ECF Prepayment Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period such fiscal year less (B) the aggregate principal amount of all 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) 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 (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), i) is required (such prepayments to be applied as set forth in clauses (v) and (viiviii) below); provided that if all Term B Loans have been paid in full and the Term B Facility has been terminated on or prior to the date a prepayment under this clause (i) would have been required to have been made, no such prepayment shall be required for such fiscal year or any subsequent fiscal year. 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 any Loan Party the Company or any of its Restricted Subsidiaries Disposes of any property (other than in the ordinary course of business, and other than any Disposition of any property permitted by Sections Section 7.05(a), 7.05(b(b), (c), (d), (g), (h) or 7.05(c(o)) which which, in any such case, results in the realization by such Person of Net Cash Proceeds, the Borrower Company shall prepay an aggregate principal amount of Loans equal to 100% of such the Net Cash Proceeds received therefrom in excess of $50,000,000 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 clauses (v) and (viiviii) below); provided, however, 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 Borrower Company (pursuant to a notice in writing as notified by the Borrower 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, such Loan Party 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 the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase 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 Borrower 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, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
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Sources: Credit Agreement (Aecom)
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Holdings or any of its Subsidiaries Disposes of any property or assets (other than any Disposition of any property or assets permitted by Sections 7.05(a) through (i), 7.05(b(l) or 7.05(c(m)) which in the aggregate results in the realization by Holdings or such Person Subsidiary of Net Cash ProceedsProceeds (determined as of the date of consummation of such Disposition, whether or not such Net Cash Proceeds are then received by Holdings or such Subsidiary, but with the amount of any such Net Cash Proceeds attributable to any time period after the consummation of such Disposition to be determined by an estimate made in good faith by a Responsible Officer), in excess of the lesser of $25,000,000 and 10% of Consolidated Net Tangible Assets (as defined in the 2015 Subordinated Notes Indenture), determined as of the last day of the most recent fiscal quarter for which a consolidated balance sheet of Holdings and its Subsidiaries has been prepared as of the date of consummation of such Disposition, in any fiscal year, then the Borrower shall prepay prepay, within 360 days of the date of such Disposition, an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds immediately upon receipt thereof by received therefrom on or prior to such Person date (such prepayments to be applied as set forth in clauses (viii) and (viiiv) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i) (other than Dispositions pursuant to Section 7.05(k)), at the election option of the Borrower (pursuant to a notice in writing by the Borrower Borrower, and as an alternative to the Administrative Agent on or prior to the date of such Dispositionprepayment requirement set forth in this Section 2.05(b)(i), and so long as no Default shall have occurred and be continuing, such Loan Party Holdings or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating fixed or capital assets to be used in the business of the Borrower and its Subsidiaries so long as within 365 days after the receipt of such Net Cash Proceeds (are used or committed to be so used within 545 days if 12 months after the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such DispositionDisposition giving rise to the obligations under this Section 2.05(b)(i); provided, further, that with respect to any Disposition permitted by Section 7.05(k), such purchase shall have been consummated (as certified by the Borrower in writing amount required to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject be prepaid pursuant to such definitive agreement or so reinvested in each case as set forth herein above, this Section 2.05(b)(i) shall be immediately applied to the prepayment 50% of the Loans as set forth first $200,000,000 of the Receivables Facility Size thereof and 100% of the Receivables Facility Size thereof in this Section 2.05(b)(ii)excess of $200,000,000.
(iiiii) Upon any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof incurrence or issuance by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party Holdings or any of its Subsidiaries, and not otherwise included in clause Subsidiaries of any Indebtedness (ii), (iii) other than Indebtedness expressly permitted to be incurred or (iv) of this issued pursuant to Section 2.05(b7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing 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 thereof by Holdings or such Subsidiary may if received prior to 11:00 a.m. on a Business Day and otherwise on the next Business Day; provided that this provision shall apply within 365 days after the receipt to Indebtedness of Holdings only if such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment Indebtedness is of the Loans as set forth type described in this Section 2.05(b)(iv)clause (a) of the definition of “Indebtedness” and exceeds $25,000,000 in the aggregate outstanding at any time.
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term A Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-pro rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, to the Revolving Credit Facility in the manner set forth in clause (viiiv) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiiv) Prepayments of the Revolving Credit Facility made pursuant to clause (i) or (ii) of this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), ) or (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C BorrowingsUnreimbursed Obligations, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(v) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
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Mandatory. The Total Commitment shall be reduced (1) concurrently with any mandatory prepayment in accordance with ss.3.2, by the amount of such mandatory prepayment and (2) as provided in ss.15.4(a)(v). In addition, the Total Commitment shall be reduced from time to time prior to the Termination Declaration Date as follows:
(i) Within five The Borrowers shall, on or before the end of the Specified Period referred to below, notify the Agents of the receipt of any Net Cash Proceeds of Collateral (5) Business Days after financial statements have been delivered pursuant to Section 6.01(aother than Specified Resale Inventory) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment Net Cash Proceeds invested by the Borrowers in new Inventory. Such notification shall contain such details as are reasonably requested by the Agents and shall be certified by a Senior Executive Officer of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) belowParent.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in In the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of event that such Net Cash Proceeds immediately upon receipt thereof exceed
(A) $10,000,000 in the aggregate since the Closing Date, the Total Commitment shall be reduced, on the last day of the Specified Period in which the disposition giving rise to such Net Cash Proceeds occurred, by the amount of the excess, MINUS the amount of any previous reductions in the Total Commitment made under this clause (A) or clause (B) below at the end of any earlier Specified Period; or
(B) $3,000,000 in the aggregate (but not greater than $10,000,000) since the Closing Date, the Total Commitment shall be reduced, on the last day of the Specified Period in which the disposition giving rise to such Person Net Cash Proceeds occurred, by the amount of the excess MINUS the amount of any previous reductions in the Total Commitment under this clause (such prepayments to be applied as set forth in clauses (vB) and (vii) below)at the end of any earlier Specified Period; provided, however, thatif by the end of the Specified Period in which such asset disposition occurred, with respect to any the Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing such disposition have been invested by the Borrower to Borrowers in new Inventory, the Administrative Agent on or prior to Total Commitment shall be reduced only by the date of such Disposition)amount, and so long as no Default shall have occurred and be continuingif any, such Loan Party or such Subsidiary may reinvest all or any portion of such by which the Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if asset disposition exceed the amount invested in new Inventory prior to end of the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)Specified Period.
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied The term "SPECIFIED PERIOD," as set forth used in clauses (v) and (vii) 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 (iithis ss.2.3(b), means (iiiA) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments a disposition giving rise to such Net Cash Proceeds occurring on or before the fifteenth day of a calendar month, the fifteenth day of the Revolving Credit Facility required pursuant next succeeding calendar month, and (B) in the case of a disposition giving rise to clause (i), (ii), (iii), or (iv) such Net Cash Proceeds occurring after the fifteenth day of this Section 2.05(b)a calendar month, the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization last day of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablenext succeeding calendar month.
Appears in 1 contract
Mandatory. (iA) Within five Immediately upon any voluntary or involuntary (5including casualty losses or condemnations) 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), the sale or disposition by any Borrower shall prepay an aggregate principal amount or its Subsidiaries of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) property or assets (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitmentother than sales or dispositions which qualify as Permitted Dispositions), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Borrower shall prepay, without penalty or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceedspremium, the Borrower shall prepay outstanding Obligations in accordance with clause (d) below in an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions to the extent that the aggregate amount of such Net Cash Proceeds immediately upon receipt thereof received by Borrowers and its Subsidiaries (and not paid to Agent as a prepayment of the Obligations) for all such Person (such prepayments to be applied as set forth sales or dispositions shall exceed $250,000 in clauses (v) and (vii) below)any fiscal year; provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as (1) no Default or Event of Default shall have occurred and be is continuing, (2) Administrative Borrower shall have given Agent prior written notice of Borrowers’ and their respective Subsidiaries’ intention to apply such Loan Party monies to the costs of replacement of the property or such Subsidiary may reinvest all or any portion assets which are the subject of such Net Cash Proceeds sale or disposition or the cost of purchase or construction of other assets useful in operating assets so long as the business of any of the Borrowers or their respective Subsidiaries, (3) the monies are held in a cash collateral account in which Agent has a perfected security interest (if requested by Agent, in its sole discretion), and (4) a Borrower or a Subsidiary of a Borrower completes such replacement, purchase or construction within 365 180 days after the initial receipt of such Net Cash Proceeds (monies, such Borrower shall have the option to apply such monies to the costs of replacement of the property or within 545 days if assets which are the applicable Loan Party has entered into a binding contract for reinvestment subject of such Net Cash Proceeds within 365 days sale or disposition or the costs of purchase or construction of other assets useful in the business of any of the Borrowers or their respective Subsidiaries unless and to the extent that such Disposition), such purchase applicable period shall have been consummated (as certified by expired without such replacement, purchase or construction being made or completed, in which case, any amounts remaining in the Borrower in writing cash collateral account shall be paid to the Administrative Agent); Agent and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case applied as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth . Nothing contained in this subclause (A) shall permit any Borrower or its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 2.05(b)(ii)6.4.
(iiiB) Upon Immediately upon the receipt by any Debt IssuanceBorrower or its Subsidiaries of any Extraordinary Receipts in any fiscal year, such Borrower shall prepay, without premium or penalty, the Borrower shall prepay outstanding Obligations in accordance with clause (d) below in an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon such Extraordinary Receipts, net of the amount of any Senior Creditor Indebtedness which is required to be, and is, repaid in connection with such receipt thereof by and any reasonable expenses incurred in collecting such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)Extraordinary Receipts.
(ivC) Upon Immediately upon the issuance or incurrence by any Extraordinary Receipt received by Borrower or paid to or for the account its Subsidiaries of any Loan Party Indebtedness (other than Indebtedness permitted by Section 6.1), or the issuance by any Borrower or its Subsidiaries of any shares of its Subsidiaries, and not otherwise included in clause or their Stock (iiother than Excluded Issuances), (iii) or (iv) of this Section 2.05(b), the such Borrower shall prepay the outstanding principal of the Obligations in accordance with clause (d) in an aggregate principal amount of Loans equal to 100% of all the Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party Borrower or its Subsidiaries in connection with such Subsidiary issuance or incurrence. The provisions of this subsection (such prepayments C) shall not be deemed to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect implied consent to any proceeds of insurance, condemnation awards (such issuance or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing incurrence otherwise prohibited by the Borrower to the Administrative Agent on or prior to the date terms and conditions of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Agreement.
(vD) Each prepayment Immediately upon the occurrence of a Merger Termination Event, the Borrowers shall prepay the outstanding Obligations plus an additional amount equal to 30% of the outstanding principal amount of the Term Loans pursuant to as of such termination. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SUCH ADDITIONAL AMOUNT IS NOT A PENALTY, BUT REPRESENTS LIQUIDATED DAMAGES IN CONNECTION WITH OCCURRENCE OF A MERGER TERMINATION EVENT. THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY THE LENDERS AS A RESULT OF THE OCCURRENCE OF SUCH MERGER TERMINATION EVENT, AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH THE LENDERS WILL INCUR AS A RESULT OF SUCH OCCURRENCE, PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT LIMIT THE LENDERS’ RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES, NOR WAIVE OR AFFECT THE LENDERS’ RIGHT AND THE BORROWERS’ OBLIGATIONS UNDER OTHER SECTIONS OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE MERGER AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO THE LENDERS. NOTWITHSTANDING THE FOREGOING, IF THE BORROWERS INTERFERE WITH OR MAKE ANY ATTEMPT TO INTERFERE WITH THE LENDERS RECEIVING OR RETAINING, AS THE CASE MAY BE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION, THE LENDERS SHALL HAVE THE RIGHT TO ELECT TO RECOVER THE GREATER OF ITS ACTUAL DAMAGES OR THE LIQUIDATED DAMAGES BY GIVING WRITTEN NOTICE TO THE BORROWERS AND THE LENDERS SHALL HAVE ALL OTHER RIGHTS AND REMEDIES AGAINST THE BORROWERS PROVIDED AT LAW AND IN EQUITY.
(E) Notwithstanding the foregoing provisions of this Section 2.05(b) 2.4(c)(ii), no mandatory prepayments of Obligations shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause Sections 2.4(c)(ii)(A) through (i), (ii), (iii), or (ivC) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization until a Discharge of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that Senior Creditor Indebtedness 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 applicableoccurred.
Appears in 1 contract
Sources: Credit Agreement (Buca Inc /Mn)
Mandatory. (i) Within five Upon the incurrence by a Loan Party of any Debt for borrowed money other than Debt permitted to be incurred pursuant to Section 5.02(b), not later than two (52) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and following the related Compliance Certificate has been delivered pursuant to Section 6.02(a)date of receipt of any Net Proceeds thereof, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment make a prepayment of the Revolving Credit Loans was accompanied by a permanent reduction Term Loan in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 Proceeds.
(ii) If for any reason the Combined Total Outstandings at any time exceed the Global Borrowing Base as then in effect, then (A) until the Discharge of ABL Obligations, the Borrower shall immediately upon receipt thereof by such Person prepay first, the ABL Obligations and, then, the Loans (such prepayments to which prepayment shall be applied ratably as set forth in clauses (vbetween the Term Loan Facility and the Delayed Draw Term Loan Facility) and (viiB) below); providedthereafter, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(iithe Borrower shall immediately prepay the Loans (which prepayment shall be applied ratably as between the Term Loan Facility and the Delayed Draw Term Loan Facility), at the election in each case in an aggregate amount to eliminate such excess.
(iii) Within one (1) Business Day following receipt by any Loan Party or any Affiliate thereof of any portion of the 2020 Tax Refund Proceeds, the Borrower shall (A) first, make a prepayment of the Delayed Draw Term Loan in an amount equal to the sum (which shall not be less than zero) of (A) the lesser of (x) 65% (or 100% if an Event of Default has occurred and continuing) of the amount of the 2020 Tax Refund Proceeds (or portion thereof) so received and (y) the Delayed Draw Term Loan Facility at such time (plus accrued interest thereon and the Early Termination Fee, if any, payable pursuant to a notice Section 2.04 in writing by the Borrower connection therewith), and (B) second, to the Administrative Agent extent the amount of the 2020 Tax Refund Proceeds so received is greater than, minus (B) the aggregate amount of scheduled repayments of the Term Loan that have been made pursuant to Section 2.05(b) after the First Amendment Effect Date and on or prior to the date of such Dispositionprepayment (without duplication of the amount of theany such scheduled repayments that reduced any prior prepayment required pursuant to the foregoing clause this Section 2.06(Ab), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or prepay any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such DispositionABL Obligations then outstanding(iii), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the Each prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, 2.06(b) shall be applied ratably accompanied by the payment of (A) accrued interest to the L/C Borrowings date of such payment on the amount prepaid and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case (B) whether before or after an Event of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), Default or (iv) of this Section 2.05(b)acceleration, the amount remainingEarly Termination Fee, if any, after the payable pursuant to Section 2.04 in connection with any prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableLoans.
Appears in 1 contract
Mandatory. (i) Within five (5) Business Days The Borrower shall, on the 120th day following the end of each Fiscal Year commencing with the first full Fiscal Year ended 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)Effective Date, the Borrower shall prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings and deposit an amount in the L/C Collateral Account in an amount equal to 75% of the Excess Cash Flow Percentage amount of Excess Cash Flow for such Fiscal Year (provided that, (A) to the applicable extent the Leverage Ratio for such Fiscal Year shall be less than 5.50:1.00 but equal to or greater than 4.00:1.00, such amount shall be reduced to 50% of Excess Cash Flow Period for such Fiscal Year, and (B) to the extent the Leverage Ratio for such Fiscal Year shall be less than 4.00:1.00, such amount shall be reduced to 0% of Excess Cash Flow for such Fiscal Year). Each such prepayment shall be applied first to the aggregate Term Facility ratably to the remaining principal amount of all Loans prepaid pursuant repayment installments thereunder and second to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied Facility as set forth below in clauses clause (v) and (vii) belowof this Section 2.06(b).
(ii) If The Borrower shall, on the date of receipt of any Net Cash Proceeds by any Loan Party or any of its Subsidiaries Disposes from (A) the sale, lease, transfer or other disposition of any property (other than any Disposition assets of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all any of its Subsidiaries, (B) the incurrence or issuance by any Loan Party or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after its Subsidiaries of any Debt, (C) the sale or issuance of any Equity Interests (including, without limitation, the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified any capital contribution) by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) any of its Subsidiaries and (viiD) below).
(iv) Upon any Extraordinary Receipt Receipts received by or paid to or for the account of any Loan Party or any of its Subsidiaries, Subsidiaries and not otherwise included in clause (iiA), (iiiB) or (ivC) of this Section 2.05(b)above, the Borrower shall prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings and deposit an amount in the L/C Collateral Account in an amount equal to 100% of all the amount of such 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 the case of clauses (vA), (B), (C) and (vii) belowD); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of . Each such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, first to the Term Facility and ratably to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, thereof and second to the Revolving Credit Facility in the manner as set forth below in clause (viiv) of this Section 2.05(b2.06(b), and third, to Cash Collateralize outstanding Letters of Credit.
(viiii) If for any reason The Borrower shall, on each Business Day, prepay an aggregate principal amount of the Total Revolving Credit Outstandings at any time exceed Advances comprising part of the same Borrowings and the Letter of Credit Advances and deposit an amount in the L/C Collateral Account in an amount equal to the amount by which (A) the sum of the aggregate principal amount of (x) the Revolving Credit Advances and (y) the Letter of Credit Advances then outstanding plus the aggregate Available Amount of all Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility at on such timeBusiness Day.
(iv) The Borrower shall, on each Business Day, pay to the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize Administrative Agent for deposit in the L/C Obligations (other than Collateral Account an amount sufficient to cause the aggregate amount on deposit in the L/C Borrowings) in an Collateral Account to equal the amount by which the aggregate amount equal to Available Amount of all Letters of Credit then outstanding exceeds the Letter of Credit Facility on such excessBusiness Day.
(viiv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), ) or (iii), or (iv) above shall be first applied to prepay Letter of this Section 2.05(b), Credit Advances and Revolving Credit Advances then outstanding comprising part of the amount remaining, if any, after the prepayment same Borrowings until such Advances are paid in full of all and second deposited in the L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization Collateral Account to cash collateralize 100% of the remaining L/C Obligations in full may be retained by Available Amount of the Borrower for use in the ordinary course Letters of its businessCredit then outstanding. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the for which 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 are on deposit in the L/C Issuer Collateral Account, such funds shall be applied to reimburse the Issuing Bank or the Revolving Credit Lenders, as applicable.
(vi) All prepayments under this subsection (b) shall be made together with accrued interest to the date of such prepayment on the principal amount prepaid, together with any amounts owing pursuant to Section 9.04(c). If any payment of Eurodollar Rate Advances otherwise required to be made under Section 2.06(b) would be made on a day other than the last day of the applicable Interest Period therefor, the Borrower may direct the Administrative Agent to (and if so directed, the Administrative Agent shall) deposit such payment in the Collateral Account until the last day of the applicable Interest Period at which time the Administrative Agent shall apply the amount of such payment to the prepayment of such Advances; provided, however, that such Advances shall continue to bear interest as set forth in Section 2.07 until the last day of the applicable Interest Period therefor.
Appears in 1 contract
Mandatory. At the end of the -------- (i-------) Within five year after the Effective Date hereof, CONTRACTOR shall relinquish to the GOVERNMENT a total of ------------------ percent (5-------- %) Business Days of the original Area on the Effective date not then converted to a Development Lease or Leases "Area subject to relinquish". Such relinquishment shall be in a single unit of whole Exploration Blocks not converted to Development Leases unless otherwise agreed upon between EGPC and CONTRACTOR so as to enable the relinquishment requirements to be precisely fulfilled. Subject to the approval of the Minister of Petroleum and Mineral Resources. During the next ----------- (--) year Exploration period, CONTRACTOR may retain the "Area subject to relinquish" mentioned above, CONTRACTOR shall submit at least six (6) months pre-notification to EGPC, including the additional technical activities to be undertaken in the "Area subject to relinquish", during the next ----------- (--) year Exploration period that CONTRACTOR elects to extend beyond the initial Exploration period , provided that CONTRACTOR shall submit a statement of costs and expenses of such additional technical activities, it is understood that CONTRACTOR is committed to such financial and technical commitments in addition to the Exploration commitments related to the second --------------- (---) year Exploration period according to Article IV (b) ,provisions of Article IV of this Agreement shall be applied, CONTRACTOR shall submit a Letter of Guaranty with an equal amount to the costs of such additional activities in the form specified in ANNEX (C) of this Agreement, and shall also pay an unrecoverable bonus for retaining "the Area subject to relinquish". At the end of the ---------- (------) year after financial statements have been delivered the Effective Date hereof, CONTRACTOR shall relinquish to the GOVERNMENT an additional --------------- percent ( %) of the original Area on the Effective date not then converted to a Development Lease or Leases. CONTRACTOR shall also relinquish the "Area subject to relinquish" retained pursuant to Section 6.01(athe above mentioned paragraph, excluding the area(s) converted to Development Lease/Leases. Such relinquishment shall be in a single unit of whole Exploration Blocks not converted to Development Leases (unless otherwise agreed upon between EGPC and CONTRACTOR) so as to enable the relinquishment requirements to be precisely fulfilled. CONTRACTOR may retain the above mentioned additional percent ( --------%) area and/or the area retained during the previous Exploration period, during the next ----------- (--) year Exploration period that CONTRACTOR elects to extend beyond the second Exploration period, subject to the approval of the Minister of Petroleum and Mineral Resources and pursuant to the terms and conditions mentioned above. this paragraph shall be added in case there are 3 exploration periods Without prejudice to Articles III and XXIII and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount last three paragraphs of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) this Article V (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(iia), at the election end of the Borrower (pursuant year of the Exploration period, CONTRACTOR shall relinquish the remainder of the Area not then converted to a notice in writing by Development Leases. It is understood that at the Borrower time of any relinquishment the areas to be converted into Development Leases and which are submitted to the Administrative Agent on or prior Minister of Petroleum and Mineral Resources for his approval according to the date of such Disposition)Article III (d) shall, and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement approval, be deemed converted to Development Leases. CONTRACTOR shall not be required to relinquish any Exploration Block or so reinvested Blocks on which a Commercial Oil or Gas Well is discovered before the period of time referred to in each case as set forth herein above, shall be immediately applied Article III (c) given to the prepayment CONTRACTOR to determine whether such Well is a Commercial Discovery worthy of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, the Borrower shall prepay Development or to relinquish an aggregate principal amount of Loans 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 (vii) 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 (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property Exploration Block in respect of which such cash proceeds were received (or within 545 days if a notice of Commercial Gas Discovery has been given to EGPC subject to EGPC's right to agree on the applicable Loan Party has entered into existence of a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans Commercial Discovery pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four Article III (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loansc), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, without prejudice to the Revolving Credit Facility in requirements of Article III (e). In the manner set forth in clause (viievent at the end of the initial Exploration period or the successive extension(s) of this Section 2.05(b)the initial Exploration period, and thirda well is actually drilling or testing, CONTRACTOR shall be allowed up to Cash Collateralize outstanding Letters six (6) months to enable it to discover a Commercial Oil or Gas Well or to establish a Commercial Discovery, as the case may be. However, any such extension of Credit.
up to six (vi6) If for any reason months shall reduce the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments length of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lendersnext succeeding Exploration period, as applicable, by that amount.
Appears in 1 contract
Sources: Concession Agreement for Petroleum Exploration and Exploitation
Mandatory. (iA) 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)At any time in which any Incremental Term Facility Loan remains outstanding, the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If if any Loan Party or any of its Subsidiaries (other than Unrestricted Subsidiaries or Excluded Subsidiaries (other than Stanfield)) Disposes of any property (other than any Disposition of any property permitted by Sections Section 7.05(a), 7.05(b(b), (c), (d), (e) or 7.05(c(h)) 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 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viii) and (viiv) below); provided, however, thatthat (1) the first $50,000,000 of such Net Cash Proceeds received in any fiscal year (the “Exempt Proceeds”) shall not be subject to the mandatory prepayment requirements set forth in this Section 2.05(b)(i)(A), and (2) with respect to any Net Cash Proceeds realized under received in respect of a Disposition described in this Section 2.05(b)(ii)2.05(b)(i)(A) in excess of the Exempt Proceeds, at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days 12 months after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase reinvestment shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that (x) any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, within such 12 month period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.05(b)(i)(A), and (y) if a Default has occurred and is continuing at any time that the Borrower or a Subsidiary Guarantor receives or is holding any Net Cash Proceeds which have not yet been reinvested, such Net Cash Proceeds shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i)(A).
(iiiB) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below)[Reserved].
(ivii) Upon At any time in which any Incremental Term Facility Loan remains outstanding, upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its SubsidiariesSubsidiaries (other than Unrestricted Subsidiaries or Excluded Subsidiaries (other than Stanfield)), and not otherwise included in clause (ii), (iii) or (ivi) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (viii) and (viiv) below); provided, however, that (A) the first $50,000,000 of such Extraordinary Receipts received in any fiscal year (the “Exempt Receipts”) shall not be subject to the mandatory prepayment requirements set forth in this Section 2.05(b)(ii), and (B) with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity paymentspayments in excess of the Exempt Receipts, at the election of the Borrower (pursuant to a notice in writing as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days 12 months after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt)received; and provided, further, however, that (A) any cash proceeds not so applied within such 12 month period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(ii), and (B) if a Default has occurred and is continuing at any time that a Loan Party or Subsidiary receives or is holding any Net Cash Proceeds which have not yet been applied to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received, such cash proceeds shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, ratably to the Revolving Credit Facility (in the manner set forth in clause (viiv) of this Section 2.05(b), ) and third, to Cash Collateralize outstanding Letters of Creditthe Incremental Term Facilities unless expressly stated otherwise.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility Amount at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiv) Prepayments Except as otherwise provided in Section 2.17, prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), ) or (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for use in the ordinary course of its business. 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.
(vi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b) shall not reduce the Revolving Credit Commitments.
Appears in 1 contract
Mandatory. (i) Within five If the Borrower or any Subsidiary shall at any time or from time to time (5i) Business Days after financial statements have been delivered pursuant make or agree to Section 6.01(amake a Disposition, including without limitation any Targeted Transactions or Designated Transaction, or (ii) shall suffer an Event of Loss resulting in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the related Compliance Certificate has been delivered pursuant to Section 6.02(a)Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate principal amount equal to 100% of the amount of all such Net Cash Proceeds; provided that in the case of each Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 90 days of receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 90-day period. Promptly after the end of such 90-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrower’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $1,000,000 not so invested or reinvested. Except for any prepayment resulting from any Designated Transaction, the amount of each such prepayment shall be applied first to the outstanding Bullet Loans A until paid in full, then to outstanding Term Loans A until paid in full, then to outstanding Term Loans B until paid in full and then to the Revolving Loans until paid in full and then to the Swing Loans, provided that (A) the Net Cash Proceeds of any disposition of the inventory and accounts receivable of a Targeted Transaction agreed to by the Borrower and the Administrative Agent (the “Working Capital Proceeds”) in an amount equal to the Excess amount included in the Borrowing Base (but not to exceed $487,000 in the aggregate) with respect to such assets shall first be applied to the repayment of Revolving Loan until paid in full and then to the Swing Loans, and (B) the Borrower may elect to apply any Working Capital Proceeds in excess the amount described in the foregoing clause (A) to the repayment of Revolving Loans or the Bullet Loans A. The amount of any payment resulting from any Designated Transaction shall be applied first to the outstanding Term Loans A until paid in full, then to outstanding Term Loans B until paid in full and then to the Revolving Loans until paid in full and then to the Swing Loans until paid in full and then to the outstanding Bullet Loans A, provided that the Net Cash Flow Percentage Proceeds of Excess Cash Flow any disposition of the inventory and accounts receivable in connection with a Designated Transaction in an amount equal to the amount included in the Borrowing Base with respect to such assets shall first be applied to the repayment of Revolving Loan until paid in full and then to the Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Event of Loss shall be deposited with the Administrative Agent and held by it in the Collateral Account. So long as no Default or Event of Default exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrower’s direction for application to or reimbursement for the applicable Excess Cash Flow Period less the aggregate principal amount costs of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any replacing, rebuilding or restoring such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) belowProperty.
(ii) If any Loan Party after the Closing Date the Borrower or any of its Subsidiaries Disposes of Subsidiary shall issue any property new equity securities (other than equity securities issued in connection with the exercise of employee stock options, equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur or assume any Disposition of any property Indebtedness other than that permitted by Sections 7.05(a6.11(a), 7.05(b(b) or 7.05(c)(c) which results hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the realization by Borrower or such Person Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans (until paid in full, then to the Term Loans B until paid in full, then to the Revolving Loans until paid in full) then to the Swing Loans until paid in full and then to the Bullet Loans A. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) No later than 28 days after the last day of each fiscal quarter, commencing with the fiscal quarter ending January 31, 2013, the Borrower shall prepay the then-outstanding Term Loans A by an aggregate principal amount equal to the amount by which the Borrower’s Excess Cash Flow for the period commencing October 1, 2012 and ending on the last day of such fiscal quarter exceeded the amount necessary for the Borrower’s Fixed Charge Coverage Ratio to be 1.2 to 1, minus the amount of Loans equal all payments previously made pursuant 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 (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below2.8(b)(iii).
(iv) Upon any Extraordinary Receipt received The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and Swing Loans and, if necessary, prefund the L/C Obligations by or paid the amount, if any, necessary to or for reduce the account sum of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Revolving Loans, Swing Loans 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 (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower L/C Obligations then outstanding to the Administrative Agent on or prior amount to which the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and Revolving Credit Commitments have been so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)reduced.
(v) Each prepayment of Loans pursuant to the foregoing provisions of under this Section 2.05(b2.8(b) shall be applied made by the payment of the principal amount to be prepaid and, in the following ordercase of any Term Loans A, firstTerm Loans B, Bullet Loans A or Swing Loans, accrued interest thereon to the Term Facility and to the principal repayment installments thereof in direct order date of maturity to the following four (4) scheduled payments to prepayment. Each prefunding of L/C Obligations shall be made on each Term Loan Repayment Date arising after in accordance with Section 7.4.
(vi) If at any time the applicable payment date (on a pro-rata basis among sum of the Closing Date Term unpaid principal balance of the Revolving Loans and the Additional Term Loans)L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, the Borrower shall immediately and thereafterwithout notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and for a mandatory prepayment on such Obligations, on a pro-rata basis amongto the remaining payments with each such prepayment first to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, applied to the Revolving Credit Facility Loans until payment in full thereof with any remaining balance to be held by the Administrative Agent in the manner set forth in clause (vii) of this Section 2.05(b), and third, Collateral Account as security for the Obligations owing with respect to Cash Collateralize outstanding the Letters of Credit.
(vivii) If for the Borrower receives any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such timeTax Refunds, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in by an aggregate amount equal to the amount of such excess.
(vii) Prepayments proceeds, and, if the Administrative Agent receives any Tax Refunds, the Administrative Agent shall apply such Tax Refunds to effect such prepayment. The amount of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, each such prepayment shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably first to the outstanding Revolving Credit LoansTerm Loans A until paid in full, andthen to the outstanding Term Loans B until paid in full, third, shall be used then to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment Loans until paid in full of all L/C Borrowings, and then to the Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations until paid in full may be retained by and then to the Borrower for use outstanding Bullet Loans A until paid in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablefull.
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Mandatory. Subject to the ABL Intercreditor Agreement: (i%4) Within five (%5) Business Days after financial statements if (x) the Borrower or any of its Restricted Subsidiaries consummate any Asset Sale or (y) any Involuntary Disposition occurs, which results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Cash Proceeds in excess for all such Dispositions that have been delivered occurred subsequent to the immediately prior prepayment pursuant to this Section 6.01(a2.03(b) and (or, if there is no such prior prepayment, on or subsequent to the related Compliance Certificate has been delivered pursuant to Section 6.02(a)Closing Date) of $40,000,000, the Borrower shall prepay cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal in an amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.03(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest or cause to be reinvested all or a portion of such Net Cash Proceeds immediately upon receipt thereof by such Person in accordance with Section 2.03(b)(i)(B) (such prepayments to which election may only be applied as set forth in clauses made if no Event of Default has occurred and is then continuing). (v%5) and (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii)or received with respect to any Disposition, at the election option of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition)Borrower, and so long as no Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary the Borrower may reinvest use all or any portion of such Net Cash Proceeds in operating to acquire, maintain, develop, construct, improve, upgrade or repair assets so long as useful for its business (including for making Acquisitions) within (i) 365 days after of the receipt of such Net Cash Proceeds or (or within 545 days ii) if the applicable Loan Party has entered Borrower enters into a legally binding contract commitment to use such Net Cash Proceeds to acquire, maintain, develop, construct, improve, upgrade or repair assets useful for reinvestment its business within 365 days after receipt of such Net Cash Proceeds Proceeds, within 365 540 days after receipt of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent)Net Cash Proceeds; and provided further, however, further that if any Net Cash Proceeds are not subject to such definitive agreement or so reinvested in each case as used within the time period set forth herein aboveabove in this Section 2.03(b)(i)(B) or are no longer intended to be so used at any time after delivery of a notice of such election, an amount equal to any such Net Cash Proceeds shall be immediately promptly applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii)2.03.
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Polyone Corp)
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party Holdings or any of its Subsidiaries (x) Disposes of any property (other than than, so long as any Australian Dollar Term A Loans are then outstanding, any real property located US-DOCS\70212156.16 in Australia, or any Disposition of any property permitted by Sections 7.05(aSection 7.05 (except pursuant to Section 7.05(j), 7.05(bSection 7.05(k) or 7.05(cSection 7.05(l))) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of an aggregate amount of $12,000,000 per Fiscal Year, the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of such Net Cash Proceeds immediately upon in excess of such $12,000,000 no later than the later of (a) five (5) Business Days following receipt thereof by such Person and (b) five (5) Business Days after such $12,000,000 threshold is reached in such Fiscal Year or (y) Disposes of any real property located in Australia, the Australian Borrower shall prepay an aggregate principal amount of Australian Dollar Term A Loans equal to 100% of the Net Cash Proceeds of such Disposition (in each case such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below); provided.
(ii) In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2017), at the election of the Borrower Borrowers shall, no later than ninety (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 90) days after the receipt end of such Net Cash Proceeds Fiscal Year, prepay (or within 545 days if Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to the applicable Loan Party has entered into a binding contract for reinvestment ECF Percentage of such Net Consolidated Excess Cash Proceeds within 365 days Flow for such Fiscal Year less an amount equal to the aggregate principal amount of such Disposition), such purchase shall have been consummated (as certified Term Loans voluntarily prepaid by the Borrower in writing Borrowers during such Fiscal Year pursuant to Section 2.05(a) with internally generated cash of Holdings (and not from the Administrative Agent); and provided furtherproceeds of Indebtedness or the sale or issuance of Equity Interests) (such amount, howeverthe “Excess Cash Flow Amount”, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iiparagraphs (v) and (vii) below).
(iii) Upon the incurrence or issuance by Holdings or any Debt Issuance, of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03) the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of all Net Cash Proceeds received therefrom immediately upon on the day of receipt thereof by such Loan Party Holdings or such Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party Holdings or any of its Subsidiaries, Subsidiaries and not otherwise included in clause paragraph (iii), (iiiii) or (iviii) of this Section 2.05(b), the Borrower Borrowers shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of all Net Cash Proceeds received therefrom immediately upon in excess of $10,000,000 per Fiscal Year no later than the later of (a) five (5) Business Days following receipt thereof by such Loan Party or Person and (b) five (5) Business Days after such Subsidiary $10,000,000 threshold is reached in such Fiscal Year (such prepayments (or Cash Collateralization) to be applied as set forth in clauses paragraphs (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment (or Cash Collateralization, as applicable) of Loans Pro Rata Obligations pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, ratably to the Term Facility and A Loans held by all Term Lenders in accordance with their Applicable Percentages (allocated to the next four principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans)and, and thereafter, on a pro-pro rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loanthereof and the repayment at the final maturity thereof), second, any excess after the application of such proceeds in accordance with clause first above, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), ) and third, to Cash Collateralize outstanding Letters any excess after the application of Credit.
(vi) If for any reason such proceeds in accordance with clauses first and second above may be retained by the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments Borrowers. Any prepayment of the Revolving Credit Facility made a Loan pursuant to this Section 2.05(b), first, ) shall be applied ratably to accompanied by all accrued interest on the L/C Borrowings and the Swing Line Loansamount prepaid, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility together with any additional amounts required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the 3.05. Each prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice pursuant to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.US-DOCS\70212156.16
Appears in 1 contract
Sources: Credit Agreement (ACCO BRANDS Corp)
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(a6.02(b), the Borrower shall prepay an aggregate principal amount of Loans in an amount equal to (A) 50% (as may be adjusted pursuant to the Excess Cash Flow Percentage proviso below) of Excess Cash Flow for the applicable Excess Cash Flow Period less fiscal year covered by such financial statements commencing with the fiscal year ended on or about December 31, 2011 minus (B) the aggregate principal amount of all Loans prepaid pursuant voluntary principal prepayments of the Loans, in each case other than to Section 2.05(a)(i) (provided the extent that any such payment prepayment is funded with the proceeds of long-term Indebtedness, or the proceeds of any sale or other disposition of assets outside the ordinary course of business; provided, that such percentage shall be reduced to 25% or 0% if the Consolidated Senior Secured Debt Ratio as of the Revolving Credit Loans last day of the prior fiscal year was accompanied less than 2.5:1.0 or 2.25:1.0, respectively. Notwithstanding the foregoing, all mandatory prepayments pursuant to this Section 2.05(b)(i) shall be limited to the extent that the Borrower reasonably determines that such mandatory prepayments would result in adverse tax consequences related to the repatriation of funds in connection therewith by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) belowForeign Subsidiaries.
(ii) (A) If any Loan Party the Borrower or any Restricted Subsidiary consummates one or more Asset Sales which result in realization or receipt by the Borrower or such Restricted Subsidiary of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of aggregate Net Cash ProceedsProceeds in excess of $15,000,000 in any fiscal year, the Borrower shall (1) give written notice to the Administrative Agent thereof promptly after the date of the realization or receipt of such Net Cash Proceeds and (2) except to the extent the Borrower elects in such notice to permanently reduce Indebtedness with Net Cash Proceeds from ABL Collateral pursuant to Section 7.05(b) or reinvest, in each case, all or a portion of such Net Cash Proceeds in accordance with Section 7.05, prepay an aggregate principal amount of Loans 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 (vii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (pursuant to a notice in writing 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon from such Asset Sale within five (5) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablesuch Restricted Subsidiary.
Appears in 1 contract
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), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(bSection 7.05 (other than clause (d) thereof) and other than proceeds of any Approved Asbestos Insurance Settlement so long as such proceeds are used or 7.05(c)committed to be used to reimburse the US Borrower or any of its Subsidiaries or make payments in respect of related claims against the US Borrower or any of its Subsidiaries and defense costs related thereto) which that results in the realization by such Person the Loan Parties and their respective Subsidiaries of Net Cash ProceedsProceeds in excess of $10,000,000 in any Fiscal Year (excluding any portion thereof that is reinvested as provided below), the applicable Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds (to the extent in excess of $10,000,000 in such Fiscal Year) immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viv) and (viiviii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii2.05(b)(i), at the election of either the US Borrower or the European Borrower (pursuant to a notice in writing as notified by the such 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, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as as, within 365 180 days after the receipt of such Net Cash Proceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition)Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied subject to the prepayment of the Loans as set forth in this Section 2.05(b)(ii2.05(b)(i).
(iiiii) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt Issuance(other than Debt expressly permitted to be incurred or issued pursuant to Section 7.02), the applicable Borrower shall prepay an aggregate principal amount of Loans 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 (viv) and (viiviii) below).
(iviii) Upon any Extraordinary Receipt (other than proceeds of any Approved Asbestos Insurance Settlement or Asbestos Judgment, so long as such proceeds are used or committed to be used to reimburse the US Borrower or any of its Subsidiaries or make payments in respect of related claims against the US Borrower or any of its Subsidiaries and defense costs related thereto, as applicable) received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), the applicable Borrower shall prepay an aggregate principal amount of Loans 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 (viv) and (viiviii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv). Colfax Credit Agreement 10/19/2011▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/Archives/▇▇▇▇▇/data/1420800/000119312508113306/dex101.htm
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following orderapplied, first, to the Term A Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan)and, second, to the Revolving Credit Facility in the manner set forth in clause (viiviii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement
Mandatory. (i)
(A) Within five If (51) Business Days any Restricted Company Disposes of any property or assets other than Excluded Dispositions (but solely to the extent the aggregate fair market value of all such Dispositions from and after financial statements have been delivered pursuant to Section 6.01(athe Effective Date exceed $25,000,000), or (2) and any Casualty Event occurs, which in the related Compliance Certificate has been delivered pursuant to Section 6.02(a)aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of $5,000,000 in any fiscal year, the Borrower shall prepay cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Term Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal in an amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) 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 all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Net Cash Proceeds immediately upon receipt thereof by such Person in accordance with Section 2.05(b)(i)(B) (such prepayments to which election may only be applied as set forth in clauses made if no Event of Default has occurred and is then continuing);
(vB) and (vii) below); provided, however, that, with With respect to any Net Cash Proceeds realized under a or received with respect to any Disposition described or any Casualty Event required to be applied in this accordance with Section 2.05(b)(ii2.05(b)(i)(A), at the election option of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of such Disposition)Borrower, and so long as no Event of Default shall have occurred and be continuing, such Loan Party the Borrower may or such Subsidiary may cause any of its Restricted Subsidiaries to reinvest all or any portion of such Net Cash Proceeds in operating the acquisition, improvement or maintenance of assets so long as useful in the operations of the Restricted Companies (1) in the case of any Net Cash Proceeds received with respect to any Disposition, within 365 days after the (x) 12 months following receipt of such Net Cash Proceeds or (or within 545 days y) if the applicable Loan Party has entered a Restricted Company enters into a binding contract for reinvestment to reinvest such Net Cash Proceeds within such 12 month period following receipt thereof, 18 months following receipt of such Net Cash Proceeds within 365 days and (2) in the case of such Disposition), such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject received with respect to any Casualty Event, within (x) 24 months following receipt of such definitive agreement Net Cash Proceeds or (y) if a Restricted Company enters into a contract to reinvest such Net Cash Proceeds within such 24 month period following receipt thereof, 30 months following receipt of such Net Cash Proceeds; provided 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 or are not so reinvested during (I) in each the case of any such Disposition, such 12 month period or 18 month period, as set forth herein aboveapplicable and (II) in the case of any such Casualty Event, such 24 month period or 30 month period, as applicable, an amount equal to any such Net Cash Proceeds shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii)2.05.
(iii) Upon any Debt Issuance, 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vii) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (pursuant to a notice in writing by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or within 545 days if the applicable Loan Party has entered into a binding contract to repair, replace or restore such property or make such reinvestment within 365 days of such receipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied in the following order, first, to the Term Facility and to the principal repayment installments thereof in direct order of maturity to the following four (4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, to the Revolving Credit Facility in the manner set forth in clause (vii) of this Section 2.05(b), and third, to Cash Collateralize outstanding Letters of Credit.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Lender Processing Services, Inc.)