Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable. (b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. (c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect. (d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below: (i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement. (ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement. (iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement. (iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Mueller Water Products, Inc.), Credit Agreement (Mueller Water Products, Inc.)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under If the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars Outstanding Amount shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effectBorrowing Base, the Borrower Co-Borrowers shall immediately prepay the Revolving Loans and/or Cash Collateralize Advances in an amount equal to such excess, without notice or demand by the L/C - BA Obligations Bank. The Co-Borrowers from time to time may voluntarily prepay the Note in whole or in part. In the event of either mandatory prepayment or voluntary prepayment hereunder (i) any prepayment of the Revolving Facility shall be applied against outstanding Advances of the Bank, (ii) each prepayment of the Note shall be made to the Bank not later than 2:00 p.m. Local Time, on a Business Day, and funds received after that hour shall be deemed to have been received by the Bank on the next following Business Day, (iii) each partial prepayment of Fundings which, at the time of such prepayment, bear interest at a Eurodollar Rate shall be accompanied by accrued interest on such partial prepayment through the date of prepayment and additional compensation calculated in accordance with Section 2.18, (iv) each partial prepayment of Fundings with respect to the Revolving Facility which, at the time of such prepayment, bear interest at a Eurodollar Rate, shall be in an aggregate amount equal to the applicable minimum Funding amount specified in Section 2.4 for the Revolving Facility and, after application of any such excess; providedprepayment, however, that the Borrower shall not be required result in a Eurodollar Funding remaining outstanding in an amount less than such minimum Funding amount, and (v) each partial prepayment of Fundings with respect to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving LoansFacility which, at the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such noticeprepayment, the Borrower bear interest at a Floating Rate, shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) be in an aggregate amount sufficient equal to reduce such Outstanding Amount as $2,000,000 or a higher integral multiple of such date of payment to an amount not to exceed 100% $1,000,000, unless (in either case) the aggregate outstanding balance of the Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and Note under the Revolving Loans effected under subsection (a) aboveFacility being prepaid is less than the minimum Funding amount, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of which event any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall prepayment may be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of in such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreementlesser amount.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (FCA Acquisition Corp.), Credit Agreement (FreightCar America, Inc.)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility Loans in whole or in part without premium or penalty; provided that (i) such notice must be in a form reasonably acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Committed Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Committed Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iv) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; and (v) any such notice may be conditioned upon the effectiveness of other Indebtedness or the occurrence of one or more other transactions or events. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such paymentprepayment (based on such Lender’s Pro Rata Share in respect of the relevant Facility). If such notice is given by the BorrowerCompany, the applicable Borrower shall irrevocably make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such Subject to Section 2.16, each prepayment of Revolving Credit Loans shall be applied to the Revolving Credit Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) No Bid Loan may be prepaid without the prior consent of the applicable Bid Loan Lender.
(c) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If for any reason the Total Revolving Credit Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effectFacility at such time, the Borrower Borrowers shall immediately prepay Revolving Credit Loans and/or Cash Collateralize the L/C - BA Obligations or Swing Line Loans in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(ce) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Credit Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Credit Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Fortive Corp), Credit Agreement (Fortive Corp)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. am. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in the Alternative Currencies Currency shall be in a minimum principal amount of $2,000,000 500,000 Euro or a whole multiple of $500,000 100,000 Euro in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid, the currency or currencies of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any time that the Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay Revolving Loans and/or the Company shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Perkinelmer Inc), Credit Agreement (Perkinelmer Inc)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall irrevocably make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason No Bid Loan may be prepaid without the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full prior consent of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectapplicable Bid Loan Lender.
(c) If the Administrative Agent notifies the Borrower at any time that the Total Outstandings at any such time exceed an amount equal to 105% of the Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Loans and/or the Borrower shall Cash Collateralize the L/C Obligations 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 Commitments then in effect; provided, however, that, subject to the provisions of Section 2.15, the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request additional Cash Collateral be provided in order to protect against the results of further exchange fluctuations.
(d) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans and L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, and/or the Borrower shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit then in effect.
(d) In addition ; provided, however, that subject to any required payments the provisions of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) aboveSection 2.15, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(d) shall be made within ten (10) Business Days unless after prepayment in full of receipt the Loans the Total Outstandings denominated in Alternative Currencies exceed the Alternative Currency Sublimit then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice Collateral, request additional Cash Collateral be provided in order to protect against the Administrative Agent, which notice shall include a certificate results of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementfurther exchange fluctuations.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Darden Restaurants Inc), Credit Agreement (Darden Restaurants Inc)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Term Loans under the and Revolving Credit Facility or either Term Loan Facility Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment of the outstanding Term Loans pursuant to this Section 2.05(a) shall be applied to the Loans principal repayment installments thereof on a pro rata basis, and each prepayment of the applicable Loans shall be paid to the Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages in respect of each of the relevant Facilities.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Total Revolving Loans denominated in Alternative Currencies Credit Outstandings at such time exceeds exceed an amount equal to 105100% (or, in the case of any such excess determined by the Administrative Agent to have resulted solely from foreign currency fluctuations, 102%) of the Alternative Currency Sublimit Revolving Credit Facility then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Credit Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of Creditsuch date of payment to an amount not to exceed 100% of the Revolving Credit Facility; provided, however, that, subject to the provisions of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Revolving Credit Outstandings exceed the Revolving Credit Facility. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all Revolving Credit Loans denominated in Alternative Currencies at such time exceeds an amount equal to 102% of the Alternative Currency Sublimit, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Revolving Credit Loans denominated in Alternative Currencies 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 Alternative Currency Sublimit then in effectSublimit.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (WEX Inc.), Credit Agreement (Wright Express CORP)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 8:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable Applicable Percentage (or other applicable share as provided herein) of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $1,000,000, or, if less, the Borrower entire principal amount thereof then outstanding. Each such notice shall immediately prepay Revolving Loans and/or Cash Collateralize specify the L/C - BA Obligations in an aggregate date and amount equal to of such excess; provided, however, that prepayment. If such notice is given by the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving LoansCompany, the Total Revolving Outstandings exceed Company shall make such prepayment and the Aggregate Revolving Credit Commitments then payment amount specified in effectsuch notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed an amount equal to 105102% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of Creditsuch date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that, subject to the provisions of Section 2.16(a)(ii), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any time that (i) the Outstanding Amount of all Loans denominated in Alternative Currencies (other than Euros and Sterling) at such time exceeds an amount equal to 102% of the Alternative Currency Sublimit then in effect, or (ii) the aggregate Outstanding Amount of all Loans exceeds an amount equal to 102% of the Aggregate Commitments then in effect, then, within four Business Days after receipt of such notice, the Borrowers shall prepay Loans 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Avnet Inc), Credit Agreement (Avnet Inc)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty, and without reduction of the Aggregate Commitments; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Revolving Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 2,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Revolving Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Revolving Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Revolving Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied to the Revolving Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty, and without reduction of the Aggregate Revolving Credit Commitments Swing Line Sublimit; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, if the amount of Swing Line Loans outstanding on the date of such prepayment (before giving effect to any such prepayment) is less than $100,000, then in effectsuch prepayment may be for the full amount of such Swing Line Loans outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Company at any time that the Total Outstandings at such time exceed an amount equal to 100% of the Aggregate Commitments then in effect, and, within five (5) Business Days after receipt of such notice, the Company and the applicable Designated Borrower shall prepay Loans and/or the Company and the applicable Designated Borrower shall Cash Collateralize the L/C Obligations 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 Commitments then in effect, and without reduction of the Aggregate Commitments or the Letter of Credit Sublimit; provided, however, that, subject to the provisions of Section 2.03(g)(ii), no Borrower shall be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations to the extent reasonably determined by the Administrative Agent to be necessary.
(d) The Administrative Agent shall notify the Company at any time that the Outstanding Amount of all Revolving Loans and L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two five (5) Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, or Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal , but without reduction of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this AgreementAlternative Currency Sublimit.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Towers Watson Delaware Inc.), Credit Agreement (Towers Watson & Co.)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) 10:00 a.m., Chicago time, three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) 10:00 a.m., Chicago time, four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) 1:00 p.m., Chicago time, on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iviii) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof thereof, or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid prepaid, and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding 's Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) Borrower may, upon notice to Agent, at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by Agent not later than 2:00 p.m., Chicago time, on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Committed Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(cd) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans and L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, and/or Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit then in effect. Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(de) In addition to any required payments No optional prepayment of principal of the Term Committed Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to denominated in an Alternative Currency may be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later other than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 Period for such fiscal year. For purposes of this Section 2.06(d)(iv)Committed Loans, the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00unless Lenders consent thereto.
Appears in 2 contracts
Sources: Credit Agreement (Littelfuse Inc /De), Credit Agreement (Littelfuse Inc /De)
Prepayments. (a) The Any Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 8:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative CurrenciesCurrencies or of Peso Rate Loans, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies or of Peso Rate Loans shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid, whether the Loans to be prepaid are Term A Loans or Revolving Credit Loans and, if Eurocurrency Rate Loans or Peso Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each Lender under the applicable Lender Facility of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that not more than two times per fiscal year, such notice, if accompanied by a commitment reduction notice in accordance with Section 2.06, may state that it is conditioned upon the effectiveness of other credit facilities or the incurrence of other Indebtedness, the consummation of a particular Disposition or the occurrence of a Change of Control, in which case such notice may be revoked by the applicable Borrower(s) (by notice to the Administrative Agent on or prior to the specified prepayment date) if such condition is not satisfied. Any prepayment of a Eurocurrency Rate Loan or Peso Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the Lenders under the applicable Lenders Facility in accordance with their Pro Rata Revolving Shares, Pro Rata respective Applicable Percentages. Each prepayment of the outstanding Term A Shares or Pro Rata Term B Shares, as applicableLoans pursuant to this Section 2.05(a) shall be applied to the principal repayment installments thereof on a pro-rata basis.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $1,000,000. Each such notice shall specify the date and amount of such prepayment. If for such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any reason time that the Total Revolving Outstandings at any such time exceed an amount equal to 110% of the Aggregate Revolving Credit Commitments then in effect, then, within three Business Days after receipt of such notice, the Borrowers shall prepay Revolving Credit Loans and/or Swing Line Loans and/or any applicant Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce the Total Revolving Outstandings as of such excessdate of payment to an amount not to exceed 100% of the Aggregate Revolving Commitments then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.17(a)(ii), the Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Credit Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Credit Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105110% of the Alternative Currency Sublimit then in effect, then, within two three Business Days after receipt of such notice, the Borrower one or more Borrowers shall prepay its Revolving Credit Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Herbalife Ltd.), Credit Agreement (Herbalife Ltd.)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility of any Class in whole or in part without premium or penalty; provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, Currencies and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; provided, further that such notice may be revocable if the Company specifies therein that such prepayment is contingent upon the consummation of an anticipated transaction. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be appliedType(s), Class(es) and the Type(s) currency or currencies of Committed Loans to be prepaid and, if Eurocurrency Rate Loans not denominated in Sterling are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of the applicable Class its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied to the Committed Loans of the Lenders of the applicable Lenders Class in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Total Revolving Loans denominated in Alternative Currencies Credit Outstandings for the US Dollar Revolving Credit Facility at such time exceeds exceed an amount equal to 105100% of the Alternative Currency Sublimit US Dollar Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay US Dollar Revolving Credit Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) the L/C Obligations in an aggregate amount sufficient at least equal to reduce such Outstanding Amount as excess; provided, however, that, subject to the provisions of Section 2.16(a), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the US Dollar Revolving Credit Loans the Total Revolving Credit Outstandings under the US Dollar Revolving Credit Facility exceed the US Dollar Revolving Credit Commitments then in effect. If the Administrative Agent notifies the Company at any time that the Total Revolving Credit Outstandings for the Multicurrency Revolving Credit Facility at such date of payment to time exceed an amount not equal to exceed 100105% of the Alternative Currency Sublimit Multicurrency Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Multicurrency Revolving Credit Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount at least equal to such excess over the Multicurrency Revolving Credit Commitments; provided, however, that, subject to the provisions of Section 2.16(a), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Multicurrency Revolving Credit Loans the Total Revolving Credit Outstandings under the Multicurrency Revolving Credit Facility exceed the Multicurrency Revolving Credit Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Smithfield Foods Inc), Credit Agreement (Smithfield Foods Inc)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay the Committed Loans under the Revolving Credit Facility or either Term Loan Facility of such Borrower in whole or in part without premium or penalty; provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 9:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in U.S. Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in U.S. Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If for such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any reason time that the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effecteffect by an amount greater than $250,000, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Committed Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the . The Administrative Agent notifies the Borrower may, at any time that and from time to time after the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt initial deposit of such noticeCash Collateral, request that additional Cash Collateral be provided in order to protect against the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters results of Credit) 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 Alternative Currency Sublimit then in effectfurther exchange rate fluctuations.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Jacobs Engineering Group Inc /De/), Credit Agreement (Jacobs Engineering Group Inc /De/)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility Individual Currency Loans made to such Borrower in whole or in part without premium or penalty; provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollarsan Alternative Currency other than a Special Notice Currency, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Special Notice Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s Core Currency Applicable Percentage (in the case of Committed Loans) or ratable share (in the case of Individual Currency Loans) of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that if such notice is given in connection with a full or partial refinancing of the Commitments, such notice may condition the prepayment upon the effectiveness of such refinancing Indebtedness, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the date of such prepayment) if such condition is not satisfied; provided that the applicable Borrower shall pay any amounts required pursuant to Section 3.05. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.18, each such prepayment of Committed Loans shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Core Currency Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that (i) solely as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Commitments then in effect or that the aggregate Revolving Credit Exposure exceeds an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments or (ii) other than as a result of fluctuations in currency exchange rates, the Total Outstandings at such time exceed the Aggregate Commitments then in effecteffect or that the aggregate Revolving Credit Exposures exceed the Aggregate Commitments, then, in either case, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters the L/C Obligations in an aggregate amount at least equal to such excess; provided, however, that, subject to the provisions of CreditSection 2.17(a), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any time that (i) solely as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Loans denominated in Non-Core Currency at such time exceed an amount equal to 105% of the aggregate Individual Currency Commitments with respect to such currency then in effect or (ii) other than as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Loans denominated in any Non-Core Currency at such time exceeds the aggregate Individual Currency Commitments with respect to such currency then in effect, then, in either case, within four Business Days after receipt of such notice, the Borrowers shall prepay Loans in such currency 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 Alternative such aggregate Individual Currency Sublimit Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Five Year Credit Agreement (Tiffany & Co), Credit Agreement (Tiffany & Co)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars, and (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable3.05.
(b) If for In the event that the Borrower or any reason the Total Revolving Outstandings at of its Subsidiaries issues or incurs any time exceed the Aggregate Revolving Credit Commitments then in effectDebt Securities, the Borrower shall immediately prepay shall, within three (3) Business Days of the actual receipt of the Net Cash Proceeds from the issuance or incurrence of such Debt Securities, first, make any prepayment required by the Revolving Loans and/or Cash Collateralize the L/C - BA Obligations Credit Agreement in an aggregate amount equal to fifty percent (50%) of such excess; providedNet Cash Proceeds, howeverand second, that to the Borrower shall not be required to extent any such Net Cash Collateralize Proceeds remain after such prepayment, prepay the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies Borrower or any of its Subsidiaries sells, transfers, leases or otherwise disposes of the stock, operations or business assets of the Borrower at or any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
its Subsidiaries (i) No later than 30 calendar days following that in the aggregate constitute twenty percent (20%) or more of the consolidated assets of the Borrower and its subsidiaries as of December 31, 2011, or (ii) in the case of a sale, transfer, lease or other disposition of the stock, operations or business assets of an Insurance Subsidiary, if the statutory surplus of such Insurance Subsidiary constitutes twenty percent (20%) or more of the consolidated or combined statutory surplus of all Insurance Subsidiaries as of December 31, 2011, then the Borrower shall, within three (3) Business Days of the actual receipt of any the Net Cash Proceeds from any Disposition permitted by Section 8.05(e)thereof, prepay the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether such prepayments to be applied as set forth in one or a series of related transactionsclause (d) below); provided that provided, however, that, with respect to any Net Cash Proceeds of such sales, transfers, leases or other dispositions described in this Section 2.03(c), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such sale, transfer, lease or other disposition), and so long as no mandatory prepayment on account Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of any such Net Cash Proceeds up in stock or operating assets comprising the insurance business of the Borrower, contribute as equity, or loan on a subordinated basis to an aggregate amount Insurance Subsidiary, so long as such reinvestment, contribution or loan is made within 180 days of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply Proceeds; provided, further, that such Net Cash Proceeds shall be deemed to the acquisition of other assets or property consistent with the Core Business be reinvested if (including by way of merger or investmentx) within twelve months following 180 days after the receipt of such Net Cash Proceeds, with the amount Borrower or such Subsidiary enters into a binding contract for such reinvestment and (y) the reinvestment contemplated by such contract is closed within 90 days thereafter (as certified by the Borrower in writing to the Administrative Agent). Any Net Cash Proceeds of any sale, transfer, lease or other disposition described in this Section 2.03(c) and not reinvested, contributed or loaned as permitted pursuant to this Section 2.03(c) shall be immediately applied to the prepayment of the Loans. Notwithstanding the foregoing, any sale, transfer, lease or other disposition by any Insurance Subsidiary, where such Net Cash Proceeds unused after thereof are retained by such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further thatInsurance Subsidiary, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall not be deemed to permit any Disposition not expressly permitted under this Agreement be a sale, transfer, lease or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, other disposition for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv2.03(c).
(d) Subject to Section 2.12, the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such each prepayment shall only be required to be made at the eighty-five percent (85%) level of Loans pursuant to the extent that the amount foregoing provisions of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment this Section 2.03 shall only be required to be made at the seventy-five percent (75%) level applied ratably to the extent that principal installments due on the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect Loans pursuant to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, Section 2.05 and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level paid to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result Lenders in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00accordance with their respective Applicable Percentages.
Appears in 2 contracts
Sources: Term Loan Agreement, Term Loan Agreement (ING U.S., Inc.)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time time, voluntarily prepay Committed Revolving Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or fivefive Business Days, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, Currencies and (C) on the date of prepayment of Base Rate Committed Revolving Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 100,000 in excess thereof; , (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount the Dollar Equivalent of which is $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Revolving Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Revolving Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to made ratably among the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablethe Applicable Percentages.
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If for such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) The Borrower may, upon notice to the Administrative Agent, at any reason time or from time to time voluntarily prepay Negotiated Rate Loans in whole or in part without premium or penalty (unless the Borrower and the applicable Lender have otherwise agreed, in which case such Loan may be prepaid in accordance with such agreement); provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. on the requested date of prepayment of such Negotiated Rate Loans; (ii) the Lender or Lenders making the Negotiated Rate Loan have consented to such prepayment; and (iii) unless agreed to by the applicable Lender and the Administrative Agent (such consent not to be unreasonably withheld), any prepayment of Negotiated Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Negotiated Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts as may be agreed to by the Borrower and the Lender or Lenders making such Negotiated Rate Loan.
(d) If the Administrative Agent notifies the Borrower at any time that (i) the Total Revolving Outstandings at such time exceed an amount equal to 105% of the Aggregate Revolving Commitments then in effect, (ii) the L/C Obligations at any time exceed the Aggregate Revolving Letter of Credit Commitments Sublimit then in effect, (iii) the Swing Line Loans outstanding at any time exceed the Swing Line Sublimit then in effect; (iv) the Negotiated Rate Loans outstanding at any time exceed the Negotiated Rate Sublimit then in effect, or (v) the Outstanding Amount of all Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, the Borrower shall immediately prepay Committed Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.06(d)(i) unless after the prepayment in full of the Committed Revolving Loans, the Swing Line Loans and the Negotiated Rate Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Hcp, Inc.), Credit Agreement (Health Care Property Investors Inc)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be in a form reasonably acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Committed Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Committed Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iv) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; and (v) any such notice may be conditioned upon the effectiveness of other Indebtedness or the occurrence of one or more other transactions or events. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall irrevocably make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) No Bid Loan may be prepaid without the prior consent of the applicable Bid Loan Lender.
(c) The Company may, upon notice to each Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lenders and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower Borrowers shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(ce) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Danaher Corp /De/), Credit Agreement (Danaher Corp /De/)
Prepayments. (a) The Borrower Borrowers may, upon notice to the Administrative Agent by the Borrower Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three 2:00 p.m. (Eastern time) 3 Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollarsor Cash Collateralization of Bankers’ Acceptances (or BA Equivalent Notes), (B) four Business Days 10:00 a.m. (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (CEastern time) on the date of prepayment of US Base Rate Loans and US Prime Rate Loans; , and (C) 10:00 a.m. (Eastern time) on the date of prepayment of Cdn. Prime Rate Loans (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars or Cash Collateralization Bankers’ Acceptances (or BA Equivalent Notes) shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility prepayment (or Cash Collateralization with respect to which the prepayment is to be applied, Bankers’ Acceptances and the Type(sBA Equivalent Notes) of and whether such Loans to be prepaid and, if are Eurocurrency Rate Loans, Bankers’ Acceptances (or BA Equivalent Notes) or Base Rate Loans and whether such Loans are to be prepaid, the Interest Period(s) of such US Dollar Loans or Cdn. Dollar Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerBorrower Agent, the Borrower Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaidthereon, together with any additional amounts required pursuant to Section 4.053.05 with respect to Eurocurrency Rate Loans. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares. With respect to Bankers’ Acceptances (and BA Equivalent Notes), Pro Rata Term A Shares the amount of such prepayment shall be held as Cash Collateral to be applied against the liability of the applicable Lender upon the maturity of such Bankers’ Acceptance or Pro Rata Term B Shares, as applicableBA Equivalent Note being so prepaid.
(b) If for Notwithstanding anything herein to the contrary, if an Overadvance exists as a result of currency fluctuations of Loans and Letters of Credit denominated in Cdn. Dollars, Borrowers shall, on the sooner of Administrative Agent’s demand or the first Business Day after any reason Borrower has actual knowledge thereof, repay the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving outstanding Cdn. Dollar Loans and/or Cash Collateralize the outstanding L/C - BA Obligations in an aggregate amount equal with respect to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Cdn. Dollar Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received that after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at repayment of Cdn. Dollar Loans or Cash Collateralization of L/C Obligations with respect to Cdn. Dollar Letters of Credit, Total Outstandings do not exceed the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00Aggregate Commitments.
Appears in 2 contracts
Sources: Credit Agreement (Atlantic Power Corp), Credit Agreement (Atlantic Power Corp)
Prepayments. (a) The Borrower Company may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be in a form reasonably acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. 12:00 p.m. (noon) (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 US$25,000,000 or a whole multiple of $1,000,000 US$5,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 US$25,000,000 or a whole multiple of $500,000 US$5,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 US$5,000,000 or a whole multiple of $US$1,000,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; and (v) any such notice may be conditioned on the effectiveness of other financing arrangements or one or more other transactions. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the Borrower Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein, subject to the occurrence of any condition(s) specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings, less Cash Collateral, at such time exceeds exceed an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Company shall prepay Revolving Loans (or, if necessary, and/or Cash Collateralize Letters of Credit) the L/C Obligations in an aggregate amount sufficient at least equal to reduce such Outstanding Amount as excess over the Aggregate Commitment; provided, however, that, subject to the provisions of such date of payment Section 2.15(a), the Company shall not be required to an amount not Cash Collateralize the L/C Obligations pursuant to exceed 100% this Section 2.04(b) unless after the prepayment in full of the Alternative Currency Sublimit Loans the Total Outstandings exceed the Aggregate Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Conagra Brands Inc.), Revolving Credit Agreement (Conagra Brands Inc.)
Prepayments. (a) The Each Borrower may, upon notice from such Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative CurrenciesEuros, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 2,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies Euros shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the a Borrower, the such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount the Total Outstandings as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit Aggregate Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above; provided, the Borrower shall make the following required prepaymentshowever, each such payment to be made that, subject to the Administrative Agent for the benefit provisions of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e2.03(g)(ii), the Borrower Company shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(c) shall be made within ten (10) Business Days unless after the prepayment in full of receipt the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to Collateral, at any time that the Administrative Agent, which notice shall include a certificate of a Responsible Officer Total Outstandings exceed 100% of the Borrower setting forth Aggregate Commitments then in reasonable detail effect, request that additional Cash Collateral be provided in order to protect against the calculations utilized in computing the Net Cash Proceeds results of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementfurther exchange rate fluctuations.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Watts Water Technologies Inc), Credit Agreement (Watts Water Technologies Inc)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Credit Loans denominated in Special Notice CurrenciesCurrencies (including, without limitation, Australian Dollars)) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of the applicable Alternative Currency Equivalent of $2,000,000 5,000,000 or a whole multiple of the applicable Alternative Currency Equivalent of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Appropriate Lender of its receipt of each such notice, and of the amount of such Appropriate Lender’s ratable share portion of such prepayment (including, in the event based on such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Appropriate Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage of such paymentprepayment). If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied paid to the Loans of the applicable Appropriate Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages in respect of each of the relevant Facilities.
(b) If for any reason The Company or the Total Revolving Outstandings applicable Specified Foreign Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than (A) in the case of Domestic Swing Line Loans, 1:00 p.m. on the date of the prepayment and (B) in the case of Foreign Swing Line Loans, 10:00 a.m. (London time) on the date that is one Business Day prior to the date of such prepayment and (ii) any such prepayment shall be in a minimum principal amount (A) $100,000, in the case of Domestic Swing Line Loans and (B) the applicable Alternative Currency Equivalent of $500,000, in the case of Foreign Swing Line Loans. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any time that the Total Outstandings that are not Cash Collateralized by the Company or another Borrower at such time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments amount of the Facility then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay Revolving Credit Loans and/or the Company shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment or Cash Collateralization to an amount not to exceed 100% of the amount of the Facility then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.03(k), the Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Credit Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments amount of the Facility then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Swing Line Loans denominated in Alternative Currencies that are not Cash Collateralized by the Company or another Borrower made to the Borrowers at such time exceeds an amount equal to 105% of the Alternative Currency Swing Line Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving the Swing Line Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Swing Line Sublimit.
(e) If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all Revolving Credit Loans made to Foreign Borrowers at such time exceeds an amount equal to 105% of the Maximum Foreign Borrower Sublimit then in effect, then, within two Business Days after receipt of such notice, the Foreign Borrowers shall prepay Revolving Credit Loans made to them in an aggregate amount sufficient to reduce such Outstanding Amount of such Loans as of such date of payment to an amount not to exceed 100% of the Maximum Foreign Borrower Sublimit.
(df) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to If the Administrative Agent for notifies the benefit of the applicable Lenders, within the Company at any time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of that the Outstanding Amount of the Term all Revolving Credit Loans in made to a Foreign Borrower at such time exceeds an amount equal to one hundred percent (100%) 105% of the Foreign Borrower Sublimit applicable to such Foreign Borrower, then, within two Business Days after receipt of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether notice, such Foreign Borrower shall prepay Revolving Credit Loans made to it in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of sufficient to reduce such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term such Loans in as of such date of payment to an amount equal not to one hundred percent (exceed 100%) % of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Foreign Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each Sublimit applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00Foreign Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Mohawk Industries Inc), Credit Agreement (Mohawk Industries Inc)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. 9:00 a.m.
(A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four five Business Days (or fivesix, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share 's Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed the Aggregate Commitments then in effect by an amount equal to 105% of the Alternative Currency Sublimit then in effect$250,000 or more, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit Aggregate Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above; provided, the Borrower shall make the following required prepaymentshowever, each such payment to be made that, subject to the Administrative Agent for the benefit provisions of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e2.03(g)(ii), the Borrower Company shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(b) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received unless after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii2.05(b) will be made within ten (10) Business Days of receipt the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice Collateral, request that additional Cash Collateral be provided in order to protect against the Administrative Agent, which notice shall include a certificate results of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreementfurther exchange rate fluctuations.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Solectron Corp)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be in a form reasonably acceptable to the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer, and received by the Administrative Agent not later than 11:00 a.m. (A) three two Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in DollarsRateTerm SOFR Loans, (B) four three Business Days (or fivefour, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Alternative Currency Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate RateTerm SOFR Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Alternative Currency Loans (other than Alternative Currency Daily Rate Revolving Loans denominated in Alternative Currencies Loans) shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is Type(s) of Committed Loans to be appliedprepaid, and the Type(s) of Loans to be prepaid applicable Tranche, and, if Eurocurrency RateTerm SOFR Loans or Alternative Currency Term Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments , and any such notice may state that it is conditioned upon the occurrence or non-occurrence of any event specified therein (including the Term Loans shall effectiveness of other credit facilities), in which case such notice may be applied pro rata revoked by the Company (by written notice to remaining installments of the scheduled amortization of Administrative Agent on or prior to the applicable Term Loanspecified effective date) if such condition is not satisfied. The Administrative Agent will promptly notify each applicable Tranche 1 Lender of its receipt of each such noticenotice in respect of any Tranche 1 Loans, and of the amount of such Tranche 1 Lender’s ratable share Applicable Tranche 1 Percentage of such prepayment (includingand will promptly notify each Tranche 2 Lender of its receipt of each such notice in respect of any Tranche 2 Loans, in and of the event amount of such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Tranche 2 Lender’s Alternative Currency Funding Pro Rata Share Applicable Tranche 2 Percentage of such payment)prepayment. If Following such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a any Eurocurrency Rate RateTerm SOFR Loan and any Alternative Currency Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment of Tranche 1 Loans shall be applied to the Tranche 1 Loans of the applicable Tranche 1 Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans respective Applicable Tranche 1 Percentages and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit prepayment of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower Tranche 2 Loans shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit Tranche 2 Loans of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis Tranche 2 Lenders in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.their respective Applicable Tranche 2
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice to the Administrative AgentLender, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term any Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent Lender not later than 11:00 a.m. 1:00 p.m.
(A) three Business Days prior to any date of prepayment of Eurocurrency a Eurodollar Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative CurrenciesLoan, and (CB) on the date of prepayment of a Base Rate LoansLoan; (ii) any prepayment of Eurocurrency a Eurodollar Rate Loans denominated in Dollars Loan shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 250,000 in excess thereof; and (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility Loan shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 50,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are Loan(s) to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaidthereon, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable3.05.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments Commitment then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.04(b) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments Commitment then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty, and without reduction of the Aggregate Commitments; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Revolving Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 2,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Revolving Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Revolving Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Revolving Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied to the Revolving Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty, and without reduction of the Swing Line Sublimit or the Aggregate Revolving Credit Commitments Commitments; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, if the amount of Swing Line Loans outstanding on the date of such prepayment (before giving effect to any such prepayment) is less than $100,000, then in effectsuch prepayment may be for the full amount of such Swing Line Loans outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Company at any time that the Total Outstandings at such time exceed an amount equal to 100% of the Aggregate Commitments then in effect, and, within five (5) Business Days after receipt of such notice, the Company and the applicable Designated Borrower shall prepay Loans and/or the Company and the applicable Designated Borrower shall Cash Collateralize the L/C Obligations 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 Commitments then in effect, and without reduction of the Aggregate Commitments or the Letter of Credit Sublimit; provided, however, that, subject to the provisions of Section 2.16(a)(ii), no Borrower shall be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations to the extent reasonably determined by the Administrative Agent to be necessary.
(d) The Administrative Agent shall notify the Company at any time that the Outstanding Amount of all Revolving Loans and L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two five (5) Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, or Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal , but without reduction of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this AgreementAlternative Currency Sublimit.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Loans and Term Loan Facility Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share portion of such prepayment (including, in the event based on such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage in respect of such paymentthe relevant Facility). If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment of the outstanding Term Loans pursuant to this Section 2.05(a) shall be applied to the Loans principal repayment installments thereof in inverse order of maturity. Subject to Section 2.17, each such prepayment shall be paid to the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages in respect of each of the relevant Facilities.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If for such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any reason time that the Total Revolving Credit Outstandings at any such time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay Revolving Loans and/or the Company shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Revolving Credit Commitments then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.17(a), the Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Credit Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies plus the Outstanding Amount of all L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the . The Administrative Agent for the benefit of the applicable Lendersmay, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if and from time to time after the Borrower informs the Administrative Agent no later than 30 days following the receipt initial deposit of such Net Cash Proceeds Collateral, request that additional Cash Collateral be provided in order to protect against the results of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreementexchange rate fluctuations.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Tetra Tech Inc)
Prepayments. (a) The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Term Loans under the and Revolving Credit Facility or either Term Loan Facility Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify whether the Loans to be prepaid are Term Loans or Revolving Loans, the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Term Lender or Revolving Lender, as the case may be, of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the applicable Borrower shall irrevocably make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata respective Applicable Percentages. Each prepayment of Term A Shares or Pro Rata Loans under this Section 2.05(a) shall be applied ratably to the then remaining scheduled principal amortization payments of the Term B Shares, as applicableLoans under Section 2.07(a).
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 2:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If for such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Borrower at any reason time that the Total Revolving Outstandings at any such time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall immediately prepay Revolving Loans and/or the Borrower shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce the Total Revolving Outstandings as of such excessdate of payment to an amount not to exceed 100% of the Aggregate Revolving Commitments then in effect; provided, however, that that, subject to the provisions of Sections 2.03(g)(ii), the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request additional Cash Collateral be provided in order to protect against the results of further exchange fluctuations.
(cd) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon irrevocable (except in connection with a termination of Aggregate Revolving Commitments as set forth in Section 2.06 below) notice from the Borrower to the Administrative Agent, at any time or (without limiting Section 6.13) from time to time voluntarily prepay the Loans under the Revolving Credit Facility or either Term Loan Facility (other than Swing Line Loans, which are covered in clause (b) below) in whole or in part without premium or penalty; provided provided, that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. 12:00 p.m. (A) three two (2) Business Days prior to any date of prepayment of Eurocurrency Rate Eurodollar RateTerm SOFR Loans denominated (or such shorter period as Agent may agree in Dollars, its reasonable discretion) and (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Eurodollar RateSOFR Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; provided, further, that such notice delivered by the Borrower may state that such notice is conditioned on the funding or consummation of any transaction or transactions specified therein (including, without limitation, any sale or disposition of Collateral or the closing of any other financing transaction). Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is Tranche(s) of Loans to be appliedprepaid, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaidEurodollar RateTerm SOFR Loans, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Eurodollar RateSOFR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Sharesrespective Applicable Percentages. If the Borrower shall fail to specify the Type(s) of Loans to be prepaid, Pro Rata Term A Shares or Pro Rata Term B Sharesthen such prepayment shall be applied first to Base Rate Loans, as applicablesecond to Eurodollar RateSOFR Loans. If the Borrower shall fail to specify the Interest Period(s) of the Loans to be prepaid, then such prepayment shall apply in direct order of Interest Payment Dates.
(b) Upon irrevocable (except in connection with a termination of Aggregate Revolving Commitments as set forth in Section 2.06 below) notice from the Borrower to the Swing Line Lender (with a copy to the Agent), at any time or from time to time, Borrower shall voluntarily prepay Swing Line Loans in whole 84 or in part without premium or penalty; provided, that (i) such notice must be received by the Swing Line Lender and the Agent not later than 12:00 p.m. on the date of the prepayment, (ii) any such prepayment shall be in a minimum principal amount of $100,000 (or, if less, the entire remaining principal balance thereof) and (iii) such notice delivered by the Borrower may state that such notice is conditioned on the funding or consummation of any transaction or transactions specified therein (including, without limitation, any sale or disposition of Collateral or the closing of any other financing transaction). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason (i) the Total Revolving Outstandings Exposure at any time exceed exceeds the Aggregate Revolving Credit Commitments Loan Cap then in effecteffect or (ii) (A) (1) at any time at which the Availability is equal to or exceeds fifty percent (50%) of the Loan Cap, the Consolidated Cash Balance exceeds $1,000,000,000 or (2) at any time at which the Availability is less than fifty percent (50%) of the Loan Cap, the Consolidated Cash Balance exceeds $500,000,000 at any time on or after the earlier of (x) September 30, 2020 and (y) the date on which outstanding Revolving Loans exceed $500,000,000 (after giving effect to any Borrowing of Loans on the Closing Date and the other transactions contemplated on the Closing Date) and and (B) Total Revolving Exposure is greater than $0, the Borrower shall immediately promptly (and in any event within one (1) Business Day) prepay Revolving Loans, Swing Line Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount amount, in each case, equal to such excess; provided, howeverthat, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Loans and Swing Line Loans the Total Revolving Outstandings exceed Exposure exceeds the Aggregate Revolving Credit Commitments then in effect.
Loan Cap (c) If the Administrative Agent notifies the Borrower at and any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal Cash Collateralization shall only be required with respect to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effectadditional amount).
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and The Borrower shall prepay the Revolving Loans effected and Cash Collateralize the L/C Obligations with the proceeds and collections received by the Loan Parties to the extent so required under subsection the provisions of Section 2.03 and Section 6.13 hereof.
(ae) Prepayments made pursuant to Section 2.05(c) and (d) above, the Borrower first, shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month periodSwing Line Loans; provided further thatsecond, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed applied ratably to permit any Disposition not expressly permitted under this Agreement or the outstanding Revolving Loans (including Revolving Loans made in respect of Bridge Commitments) (first to constitute a waiver or cure Base Rate Loans and then to Eurodollar RateSOFR Loans); third, shall be used to Cash Collateralize the remaining L/C Obligations; and, fourth, the amount remaining, if any, after the prepayment in full of all Swing Line Loans and Revolving 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 Default Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, notice to or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(lother Loan Party) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligationsto reimburse the L/C Issuer or the Lenders, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Macy's, Inc.)
Prepayments. (a) The Subject to the last sentence of this Section 2.04(a), the Borrower may, upon notice to the Administrative Agent, at any time or from time to time time, voluntarily prepay Term Loans under the and Revolving Credit Facility or either Term Loan Facility Loans, in whole or in part part, without premium or penalty; provided that (iA) such notice must be received by the Administrative Agent not later than 11:00 a.m. A.M. (A1) on the date that is three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative CurrenciesLoans, and (C2) on the date that is one Business Day prior to the date of prepayment of Base Rate Loans; (iiB) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereofthereof (in the case of Loans denominated in Dollars), €1,000,000 or a whole multiple of €500,000 in excess thereof (in the case of Loans denominated in Euros) or £1,000,000 or a whole multiple of £500,000 in excess thereof (in the case of Loans denominated in Sterling) or, in each case, if less, the entire principal amount thereof then outstanding; and (ivC) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) (and currency) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share portion of such prepayment (including, in the event based on such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage in respect of such paymentthe relevant Facility). If such notice is given by the Borrower, the The Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment of the outstanding Term Loans by the Borrower pursuant to this Section 2.04 shall be applied to the Term Loans of the applicable Borrower as it shall elect and shall apply to reduce future scheduled amortization payments, as directed by the Borrower (or, absent such direction, in direct order of maturity). Each prepayment of the outstanding Term Loans pursuant to this Section 2.04 shall be paid to the Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages in respect of each of the relevant Facilities.
(b) If for any reason The Borrower may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed the Aggregate Revolving Credit Commitments then in effector from time to time, voluntarily prepay Swing Line Loans of the Borrower in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 P.M. on the date of the prepayment, and (B) any such prepayment shall immediately prepay Revolving be in a minimum principal amount of $100,000, €100,000 or £100,000, as applicable (or such lesser amount as equals the entire principal amount outstanding on such date). Each such notice shall specify the date and amount of such prepayment and which Swing Line Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the are being prepaid. The Borrower shall not make such prepayment and the payment amount specified in such notice shall be required to Cash Collateralize due and payable on the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the The Borrower at shall, on any time that the Outstanding Amount Revaluation Date, prepay an aggregate principal amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% comprising part of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans same Borrowings and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Swing Line Loans in an amount equal to the Required ECF Prepayment Percentage amount by which the Dollar Equivalent (defined belowwhich shall be advised by the Administrative Agent from time to time as requested by the Borrower) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as sum of the end aggregate principal amount of each (x) Revolving Loans and (y) Swing Line Loans then outstanding exceeds the Revolving Credit Facility on the date of such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010)determination; provided that for upon the fiscal year occurrence and during the continuance of a Default, such determination and payment shall be made by the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00on each Business Day.
Appears in 1 contract
Sources: Credit Agreement (Colfax CORP)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. 12:00 p.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 500,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Stericycle Inc)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. 12:00 p.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 12:00 noon on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed an amount equal to 105100% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Commitments then in effect; provided, however, that, subject to the provisions of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any time that the portion of the Total Outstandings denominated in Alternative Currencies at such time exceeds an amount equal to 100% of the Alternative Currency Sublimit then in effect.
(d) In addition , then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to any required payments of principal reduce such portion of the Term Loans and any optional payments Total Outstandings as of principal such date of payment to an amount not to exceed 100% of the Term Loans and the Revolving Loans effected under subsection (a) aboveAlternative Currency Sublimit then in effect; provided, the Borrower shall make the following required prepaymentshowever, each such payment to be made that, subject to the Administrative Agent for the benefit provisions of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e2.03(g)(ii), the Borrower Company shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(d) shall be made within ten (10) Business Days unless after the prepayment in full of receipt the Loans denominated in Alternative Currencies the portion of the Total Outstandings denominated in Alternative Currencies exceeds the Alternative Currency Sublimit then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice Collateral, request that additional Cash Collateral be provided in order to protect against the Administrative Agent, which notice shall include a certificate results of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementfurther exchange rate fluctuations.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Stericycle Inc)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penaltypenalty (except as set forth in the second proviso to this sentence or as otherwise agreed with any Lenders in respect of any increase in the Facilities pursuant to Section 2.14); provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars, and (B) four one Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) Day prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; provided, further, that, in the event that on or prior to the six-month anniversary of the Closing Date, the Borrower (x) makes any prepayment of Term B Loans in connection with any Repricing Transaction (including pursuant to Section 2.05(e)), or (y) effects any amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each Term B Lender, (I) in the case of clause (x), a prepayment premium in an amount equal to 1.00% of the principal amount so prepaid and (II) in the case of clause (y), a payment equal to 1.00% of the aggregate principal amount of the Term B Loans outstanding immediately prior to such amendment that have been repriced. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid prepaid, whether the Committed Loans to be repaid are Revolving Credit Loans or Term B Loans and, if Eurocurrency Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the Lenders in respect of the applicable Lenders Facility in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata respective Applicable Percentages. All prepayments of Term B SharesLoans and Incremental Term Loans pursuant to this Section 2.05(a) (i) shall be applied ratably to each such Tranche of Loans (unless the Lenders of any Tranche of Incremental Term Loans have elected a lesser prepayment) and (ii) shall be applied to the scheduled installments of Term B Loans in the manner directed by the Borrower in the respective notice of prepayment (or, as applicablein the absence of such direction, in direct order of maturity).
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Swing Line Loans, and if no Swing Line Loans are (or remain) outstanding, Revolving Credit Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans, the Total Revolving Outstandings exceed the Aggregate aggregate Revolving Credit Commitments then in effect.
(cd) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Within ten Business Days after the receipt by the Parent or any of such noticeits Restricted Subsidiaries of Net Cash Proceeds of any Disposition (other than Dispositions expressly permitted under Section 8.05(a), (b), (c), (d), (f) or (h)) or from any Extraordinary Loss from and after the Closing Date, the Borrower shall prepay Revolving repay Loans (or, if necessary, Cash Collateralize Letters of Credit) in an aggregate principal amount sufficient equal to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and (such prepayments to be applied as set forth in clause (h) below); provided, that if the Borrower shall makecertify at the time of such receipt that it, the Parent or shall cause each applicable any of their Restricted Subsidiary Subsidiaries intends to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%i) of Reinvest such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 within twelve months of such receipt or (whether in one or ii) enter into a series of related transactions); provided that no mandatory prepayment on account of any legally binding commitment to Reinvest such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with no later than six months after the amount end of such twelve month period, the Borrower or such Restricted Subsidiary may use such Net Cash Proceeds for such purposes; provided further, to the extent that the Borrower or such Restricted Subsidiary shall not have (i) Reinvested 100% of such Net Cash Proceeds unused by not later than twelve months after the receipt thereof or (ii) entered into a legally binding commitment to Reinvest such twelve-Net Cash Proceeds within twelve months and Reinvested such Net Cash Proceeds no later than six months after the end of such twelve month period being period, the Borrower shall use any such remaining Net Cash Proceeds to repay Loans on such date; and provided, further, the Borrower shall not be required to be applied repay Loans pursuant to this clause (d) unless and until the aggregate amount of Net Cash Proceeds the Borrower is required to use to prepay Loans pursuant to this clause (d) is equal to or greater than $15,000,000 (and at such prepayment on time, the last day Borrower shall prepay the Loans using all such Net Cash Proceeds (and not just the portion in excess of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement$15,000,000)).
(iie) The Borrower shall make, Within five Business Days after the receipt by the Parent or shall cause each applicable any of its Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit Subsidiaries of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after from the Amendment Date from each private incurrence, issuance or public issuance of Indebtedness of sale by the Borrower Parent or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) of Indebtedness (other than Permitted Subordinated Debt Indebtedness expressly permitted by Section 8.03, but including Indebtedness in respect of Refinancing Facilities and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (dRefinancing Equivalent Debt), as applicable) is greater than 3.50 the Borrower shall repay Loans in an aggregate principal amount equal to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt 100% of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice such prepayments to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting be applied as set forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(iiclause (h) only to issuances of Indebtedness that are permitted under Sections 8.03(lbelow), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(ivf) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), beginning with the fiscal year ending December 31, 2017 (for the period from July 1, 2017 through and including December 31, 2017) and for each fiscal year thereafter, the Borrower shall make a prepayment prepay an aggregate principal amount of Loans (such prepayments to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans be applied as set forth in an amount clause (h) below) equal to the Required ECF Prepayment Percentage remainder of (defined belowA) 50% of Excess Cash Flow for the fiscal year (or, in the case of fiscal year 2017, such portion thereof) covered by such financial statements and measured as minus (B) other than to the extent made with the proceeds of long-term Indebtedness (other than revolving Indebtedness), (i) the end aggregate principal amount of each voluntary prepayments of Term B Loans made during such fiscal year pursuant to Section 2.05(a), (commencing with ii) the aggregate amount of any reduction in the outstanding principal amount of Term B Loans resulting from assignments to the Borrower made during such fiscal year in accordance with Section 11.06(g) (but, in the case of this clause (ii), limited to the Borrower ending September 30amount of cash actually used to purchase principal of such Term B Loans) and (iii) the aggregate principal amount of any voluntary prepayments of Revolving Credit Loans made during such fiscal year pursuant to Section 2.05(a), 2010but, in the case of this clause (iii), only to the extent accompanied by a like voluntary reduction in the Revolving Credit Commitments made during such fiscal year pursuant to Section 2.06(a); provided that for such percentage shall be reduced to 25% if the Consolidated Secured Leverage Ratio as of the last day of the applicable fiscal year was less than or equal to 3.00:1.00; and provided, further, that no mandatory prepayment under this Section 2.05(f) shall be required if the Consolidated Secured Leverage Ratio as of the last day of the applicable fiscal year was less than or equal to 2.25:1.00.
(g) [Reserved].
(h) All prepayments of Loans made pursuant to clauses (d), (e) and (f) of this Section 2.05 shall be applied first, ratably to the Term B Loans and to each Tranche of outstanding Incremental Term Loans (unless the Lenders under any such Incremental Term Loans have elected to be paid on a less than ratable basis), and second, once the Term B Loans and all Incremental Term Loans have been repaid in full, ratably to repay the Revolving Credit Loans (without any reduction in the Revolving Credit Commitments).
(i) All prepayments of Term B Loans an each Tranche of Incremental Term Loans shall be applied to the scheduled installments thereof in direct order of maturity.
(j) The Borrower ending September 30shall notify the Administrative Agent in writing of any mandatory prepayment of Term B Loans required to be made pursuant to Sections 2.05(d), 2009(e) and (f) at least three Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each appropriate Lender of the contents of the Borrower’s prepayment notice and of such appropriate Lender’s Applicable Percentage of the prepayment. Each Term B Lender may reject all or a portion of its Applicable Percentage of any mandatory prepayment (such declined amounts, the Borrower shall make “Declined Proceeds”) of Term B Loans required to be made pursuant to Sections 2.05(d) and (f) by providing written notice (each, a prepayment “Rejection Notice”) to the Administrative Agent, for Agent and the benefit Borrower no later than 5:00 p.m. one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the applicable Lenders, mandatory repayment of Term B Loans to be rejected by such Lender. If a Term B Lender fails to deliver a Rejection Notice to the Outstanding Amount Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term B Loans in to be rejected, any such failure will be deemed an acceptance of the total amount equal of such mandatory prepayment of Term B Loans. Any Declined Proceeds remaining thereafter shall be retained by the Borrower.
(k) Notwithstanding any provision under this Section 2.05 to fifty percent the contrary, (50%i) any amounts that would otherwise be required to be paid by the Borrower pursuant to Sections 2.05(d) and (f) shall not be required to be so prepaid to the extent of any such Excess Cash Flow that exceeds $5,000,000 is generated by a Foreign Subsidiary or such Net Cash Proceeds are received by a Foreign Subsidiary, for so long as the repatriation to the United States of any such fiscal year. For purposes amounts would be prohibited under any requirement of law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could 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 (the Borrower agreeing to 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, unless the provisions of clause (iii) below are applicable, of any such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable requirement of law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for the Persons described above, such repatriation will be promptly effected and such repatriation of Net Cash Proceeds or Excess Cash Flow, as applicable, 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 Loans pursuant to this Section 2.06(d)(iv2.06 to the extent provided herein (without regard to this clause (k)); and (ii) if the repatriation by a Foreign Subsidiary to the United States of any amount required to mandatorily prepay the Loans pursuant to Sections 2.05(d) and (f) would result in material adverse tax consequences to the Parent or its Restricted Subsidiaries (such amount, a “Restricted Amount”), as reasonably determined by the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%)Borrower, provided that such prepayment the amount the Borrower shall only be required to mandatorily prepay pursuant to Sections 2.05(d) and (f), as applicable, shall be made at reduced by the eighty-five percent (85%) level Restricted Amount until such time as it may repatriate to the United States such Restricted Amount without incurring such material adverse tax liability; provided, to the extent that the repatriation of any Net Cash Proceeds or Excess Cash Flow from such Foreign Subsidiary would no longer have a material adverse tax consequence, an amount of Consolidated Senior Secured First Lien Indebtednessequal to the Net Cash Proceeds or Excess Cash Flow, as reduced by giving effect applicable, not previously applied pursuant to such prepayment at preceding clauses (i) and (ii) shall be promptly applied to the eighty-five percent repayment of the Loans pursuant to this Section 2.06 as otherwise required above (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than without regard to 3.00 to 1.00, this clause (B) seventy-five percent (75%k), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to ). To the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level any amounts have not been repatriated to the extent that Borrower by operation of this clause (k) within one year from the amount date of Consolidated Senior Secured First Lien Indebtednessthe applicable requirement to prepay the Loans, as reduced by giving effect to such prepayment at the fifty-percent Borrower shall not have any further obligations under this clause (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00k).
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice to Company shall have the Administrative Agent, right at any time or and from time to time voluntarily to prepay Loans under the Revolving Credit Facility or either Term Loan Facility any borrowing in whole or in part without premium or penaltypart, subject to prior notice in accordance with paragraph (b) of this Section; provided that the Company shall not have the right to prepay any Swingline Loan without the prior consent of the Swingline Lender.
(ib) such notice must be received by The Company shall notify the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or fiveand, in the case of prepayment of Revolving Loans denominated a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment hereunder (i) in Special Notice Currenciesthe case of prepayment of a Eurodollar borrowing, not later than 10:00 a.m., Houston time, three Business Days before the date of prepayment, (ii) prior to any in the case of prepayment of a Reference Rate borrowing, not later than 10:00 a.m., Houston time, one Business Day before the date of prepayment or (iii) in the case of Eurocurrency Rate Revolving Loans denominated in Alternative Currenciesprepayment of a Swingline Loan, and (C) not later than 11:00 a.m., Houston time, on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars prepayment. Each such notice shall be in a irrevocable and shall specify the prepayment date and the principal amount of $3,000,000 each borrowing or portion thereof to be prepaid. Promptly following receipt of any such notice relating to a whole multiple Revolving Borrowing, the Administrative Agent shall advise the Banks of $1,000,000 in excess the contents thereof; (iii) any . Each partial prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies any borrowing shall be in a minimum principal amount of $2,000,000 100,000 or a whole an integral multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice borrowing shall be due and payable on applied ratably to the date specified thereinRevolving Loans included in the prepaid borrowing. Prepayments shall be accompanied by accrued interest. Any prepayment of a Eurocurrency Rate Eurodollar Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later a day other than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) an Interest Period therefore shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant subject to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.008.
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Prepayments. (a) The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Revolving Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Revolving Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Revolving Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Revolving Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Borrower may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower at any time that the Total Outstandings at such time exceed an amount equal to 102% of the Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Loans and/or the Borrower shall Cash Collateralize the L/C Obligations 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 Commitments then in effect; provided, however, that, subject to the provisions of Section 2.03(g)(ii), the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(d) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
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Prepayments. (ai) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Term Loans under the and Revolving Credit Facility or either Term Loan Facility Loans in whole or in part without premium or penalty; provided that (iA) such notice must be received by the Administrative Agent not later than 11:00 a.m. 8:00 a.m.
(A1) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B2) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C3) on the date of prepayment of Base Rate Committed Loans; (iiB) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iiiC) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (D) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable affected Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share portion of such prepayment (including, in the event based on such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage in respect of the relevant Facility) of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall of an outstanding Term Facility pursuant to this Section 2.05(a) shall, subject to Section 2.19, be applied to the Loans of principal repayment installments thereof on a pro rata basis, and each such prepayment shall be paid to the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages in respect of each of the relevant Facilities.
(bii) If for Notwithstanding anything in any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made Loan Document to the Administrative Agent for the benefit contrary, so long as (w) no Default or Event of the applicable LendersDefault has occurred and is continuing, within the time period specified below:
(ix) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower FIL shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent certificate stating that (100%1) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a has occurred and is continuing or would result from the proposed prepayment described below and (2) each of the conditions set forth in this Section has been satisfied, (y) none of the Borrowers or any other Loan Party has any material non-public information with respect to FIL and its Subsidiaries or the securities of any Disposition of them that is has not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment been disclosed to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) Lenders generally (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing Lenders who elect not to receive such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(cinformation) and (d)z) no proceeds of Revolving Credit Loans or Swing Line Loans are used for this purpose, as applicable) is greater than 3.50 to 1.00. Each prepayment FIL may prepay any portion of the outstanding Term Loans required to be made pursuant to this Section 2.06(d)(ii(and immediately and permanently cancel them) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to on the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.following basis:
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Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four (4) Business Days (or fivefive (5), in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, Currencies and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a minimum principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; , (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of the Alternative Currency Equivalent of $2,000,000 5,000,000 or a whole multiple of the Alternative Currency Equivalent of $500,000 1,000,000 in excess thereof; thereof and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share portion of such prepayment (including, in the event based on such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage in respect of such paymentthe currency of the Committed Loans being prepaid). If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, then within two (2) Business Days after receipt of such noticenotice thereof, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit Aggregate Commitments then in effect; provided that the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans, the Total Outstandings exceed the Aggregate Commitments then in effect.
(d) In addition to If for any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of reason the Outstanding Amount of Loans denominated in any Alternative Currency under the Term Loans in Global Revolving Credit Facility at any time exceeds an amount equal to one hundred percent 105% of the Global Revolving Credit Facility then in effect, then, within two (100%2) Business Days after receipt of notice thereof, the Borrowers shall prepay Global Revolving Credit Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such Net Cash Proceeds received after date of payment to an amount not to exceed 100% of the Amendment Date that exceed $25,000,000 (whether Global Revolving Credit Facility then in one or a series of related transactions)effect; provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time the Company shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(d) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to unless after the Administrative Agent, which notice shall include a certificate of a Responsible Officer prepayment in full of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b)Global Revolving Credit Loans, the Borrower shall make a prepayment to Total Global Revolving Credit Outstandings exceed the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans Global Revolving Credit Commitments then in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00effect.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, Companies may at any time or and from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility then outstanding Loans, in whole or in part part, without premium or penalty; , except as provided that in Section 3.08 with respect to any prepayment or payment of a Fixed Rate Loan on a date other than the last day of the Interest Period with respect thereto, upon written notice to the Lender (ior telephonic notice promptly confirmed in writing) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) New York, New York time), three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on before the date of prepayment with respect to prepayments of Base Fixed Rate Loans; , or 11:00 a.m. (iiNew York, New York time) any one Business Day before the date of prepayment of Eurocurrency with respect to CB Floating Rate Loans denominated in Dollars Loans. Each notice shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; irrevocable and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event whether such prepayment is of Adjusted Libor Loans, CB Floating Rate Loans or Quoted Rate Loans, or a Revolving Loan denominated in an Alternative Currencycombination thereof, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share and if a combination thereof, the amount of such payment)prepayment allocable to each. If such notice is given by the Borrowergiven, the Borrower Companies shall make such prepayment prepayment, and the payment amount specified in such notice shall be due and payable payable, on the date specified therein. Any Each partial prepayment of a Eurocurrency Fixed Rate Loan pursuant to this Section 3.03 shall be accompanied by all accrued interest on the in a principal amount prepaid, together with any additional amounts required of $500,000 or whole multiples of $100,000 in excess thereof. Each partial prepayment of a CB Floating Rate Loan pursuant to this Section 4.05. Each such prepayment 3.03 shall be applied to the Loans in a principal amount of the applicable Lenders $250,000 or whole multiples of $100,000 in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicableexcess thereof.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations Each prepayment of principal of a Loan pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower 3.03 shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made accompanied by accrued interest to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of date prepaid on the amount of such Net Cash Proceeds and prepaid. Unless otherwise directed by the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered Companies pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b3.03(a), the Borrower partial prepayments of any Loan shall make a prepayment be applied first to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term outstanding CB Floating Rate Loans and then to Fixed Rate Loans in an amount equal to such order as the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements Lender shall determine in its sole and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00absolute discretion.
Appears in 1 contract
Sources: Credit Agreement (Aceto Corp)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, if less, the entire principal amount then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.06(c) unless after the prepayment in full of the Revolving Loans, Committed Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(cd) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Bright Horizons Family Solutions Inc)
Prepayments. (a) The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) 1:00 p.m. three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) 1:00 p.m. four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) 11:00 a.m. on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Borrower may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Borrower at any time that the Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall immediately prepay Revolving Loans and/or the Borrower shall Cash Collateralize the L/C - C-BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - C-BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(cd) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans and L/C-BA Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, and/or Cash Collateralize Letters of Credit) L/C-BA Obligations in an aggregate amount sufficient to reduce such Outstanding Amount of Loans and L/C-BA Obligations 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; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C-BA Obligations pursuant to this Section 2.05(d) unless, after the prepayment in full of the Loans, the Outstanding Amount of all Loans and L/C-BA Obligations denominated in Alternative Currencies exceeds the Alternative Currency Sublimit then in effect.
(de) In addition If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all L/C-BA Obligations at such time exceeds an amount equal to any required payments of principal 105% of the Term Loans and any optional payments Letter of principal Credit-BA Sublimit then in effect, then, within two Business Days after receipt of the Term Loans and the Revolving Loans effected under subsection (a) abovesuch notice, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
either (i) No later than 30 calendar days following cancel and return Letters of Credit or (ii) Cash Collateralize the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e)L/C-BA Obligations, the Borrower shall deliver together in an aggregate amount sufficient to the Administrative Agent a calculation of the amount of reduce such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in all L/C-BA Obligations as of such date to an amount equal not to one hundred percent (exceed 100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit % of the applicable Lenders, Letter of the Outstanding Amount of the Term Loans Credit-BA Sublimit then in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementeffect.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Any Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 8:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative CurrenciesCurrencies or of Peso Rate Loans, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies or of Peso Rate Loans shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans or Peso Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that not more than two times per fiscal year, such notice, if accompanied by a commitment reduction notice in accordance with Section 2.06, may state that it is conditioned upon the effectiveness of other credit facilities or the incurrence of other Indebtedness, the consummation of a particular Disposition or the occurrence of a Change of Control, in which case such notice may be revoked by the applicable Borrower(s) (by notice to the Administrative Agent on or prior to the specified prepayment date) if such condition is not satisfied. Any prepayment of a Eurocurrency Rate Loan or Peso Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $1,000,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any time that the Total Outstandings at such time exceed an amount equal to 110% of the Aggregate Revolving Credit Commitments then in effect, then, within three Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or any applicant Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.17(a)(ii), the Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105110% of the Alternative Currency Sublimit then in effect, then, within two three Business Days after receipt of such notice, the Borrower one or more Borrowers shall prepay Revolving its Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time time, voluntarily prepay any Class of Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penaltypenalty pursuant to this Section 2.06(a) (other than Negotiated Rate Loans, which are subject to the provisions of clause (c) below); provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days (or such shorter period as the Administrative Agent shall agree) prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four (4) Business Days (or fivefive (5) Business Days, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) (or such shorter period as the Administrative Agent shall agree) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, Currencies and (C) on the date of prepayment of Base Rate Committed Loans or LIBOR Daily Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars or LIBOR Daily Loans shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 100,000 in excess thereof; , (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount the Dollar Equivalent of which is $2,000,000 1,000,000 or a whole multiple of $500,000 100,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) and Class(es) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided, however, that a notice of voluntary prepayment may state that such notice is conditioned upon an event, such as the effectiveness of other credit facilities, the receipt of the proceeds from the issuance of Equity Interests or other Indebtedness or the receipt of the proceeds from a Disposition, in which case such notice of prepayment may be revoked by the Borrower if such condition is not satisfied. Any prepayment of a Eurocurrency Rate Loan or LIBOR Daily Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such Subject to Section 2.18, each prepayment of Committed Revolving Loans made pursuant to this clause (a) shall be applied to made ratably among the Loans of the applicable Revolving Lenders in accordance with their Pro Rata respective Applicable Percentages of the Committed Revolving Shares, Pro Rata Loans. Each prepayment of Committed Term A Shares or Pro Rata Loans made pursuant to this clause (a) shall be made ratably among the Term B Shares, as applicableLenders in accordance with their respective Applicable Percentages of the Committed Term Loans.
(b) If for any reason [Reserved].
(c) The Borrower may, upon notice to the Total Revolving Outstandings Administrative Agent, at any time exceed or from time to time voluntarily prepay Negotiated Rate Loans in whole or in part without premium or penalty (unless the Aggregate Borrower and the applicable Revolving Credit Commitments Lender have otherwise agreed, in which case such Loan may be prepaid in accordance with such agreement); provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. on the requested date of prepayment of such Negotiated Rate Loans; (ii) the Revolving Lender or Lenders making the Negotiated Rate Loan have consented to such prepayment; and (iii) unless agreed to by the applicable Revolving Lender and the Administrative Agent (such consent not to be unreasonably withheld), any prepayment of Negotiated Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, if less, the entire principal amount thereof then in effectoutstanding. Each such notice shall specify the date and amount of such prepayment. The Administrative Agent will promptly notify each applicable Revolving Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excessnotice shall be due and payable on the date specified therein; provided, however, that a notice of voluntary prepayment may state that such notice is conditioned upon an event, such as the effectiveness of other credit facilities, the receipt of the proceeds from the issuance of Equity Interests or other Indebtedness or the receipt of the proceeds from a Disposition, in which case such notice of prepayment may be revoked by the Borrower if such condition is not satisfied. Any prepayment of a Negotiated Rate Loan shall not be required accompanied by all accrued interest on the amount prepaid, together with any additional amounts as may be agreed to Cash Collateralize by the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of Borrower and the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectLender or Lenders making such Negotiated Rate Loan.
(cd) If the Administrative Agent notifies the Borrower at any time that (i) the Total Revolving Outstandings at such time exceed an amount equal to 105% of the Aggregate Revolving Commitments then in effect, (ii) the L/C Obligations at such time exceed the Letter of Credit Sublimit then in effect, (iii) the Negotiated Rate Loans outstanding at such time exceed the Negotiated Rate Sublimit then in effect, or (iv) the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving the applicable Loans (or, if necessary, and/or Cash Collateralize Letters of Credit) the L/C Obligations in an aggregate amount sufficient equal to reduce such Outstanding Amount as of such date of payment excess within one (1) Business Day (or, with respect to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
clause (d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lendersiv), within the time period specified below:
(ix) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent four (100%4) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash ProceedsDays, with the amount of such Net Cash Proceeds unused after such twelve-month period being required respect to be applied to such prepayment on the last day of such twelve-month period; provided further thatOutstanding Amounts denominated in Euros, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement Sterling or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) Canadian Dollars and (d), as applicabley) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice , with respect to Outstanding Amounts denominated in any other Alternative Currency) after the Administrative Agent notifies the Borrower that such a prepayment is required and of the amount thereof; provided, however, that, subject to the Administrative Agent, which notice shall include a certificate provisions of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b2.17(a)(iv), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only not be required to be made at Cash Collateralize the eighty-five percent (85%L/C Obligations pursuant to this Section 2.06(d) level to unless after the extent that prepayment in full of the amount of Consolidated Senior Secured First Lien IndebtednessCommitted Revolving Loans and the Negotiated Rate Loans, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result Total Revolving Outstandings exceed the Aggregate Revolving Commitments then in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00effect.
Appears in 1 contract
Sources: Credit Agreement (Hcp, Inc.)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Eurodollar Rate Committed Loans denominated in Dollars, (B) four three Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Eurodollar Rate Revolving Committed Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Eurodollar Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Eurodollar Rate Committed Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.19, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) No Bid Loan may be prepaid without the prior consent of the applicable Bid Loan Lender.
(c) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower Borrowers shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, provided that the Borrower Borrowers shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.06(d) unless after the prepayment in full of the Revolving Loans, Committed Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(ce) If the Administrative Agent notifies the Borrower at for any time that reason the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such noticeeffect by more than $5,000,000, the Borrower Borrowers shall immediately prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to , provided that such mandatory prepayment of any required payments of principal Loans denominated in Alternative Currencies may be delayed until the last day of the Term Interest Period applicable to such Loans and any optional payments of principal of if the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower Borrowers shall make the following required prepayments, each such payment deposit or cause to be made to deposited, on the Administrative Agent for the benefit of the applicable Lendersday prepayment would have otherwise been required, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted in a cash collateral account opened by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the principal amount of such Net Cash Proceeds unused after delayed mandatory prepayment of Loans denominated in Alternative Currencies and any accrued but unpaid interest thereon; providedfurther, that any amounts still outstanding following application of such twelve-month period being required to cash collateral shall be applied to such prepayment immediately due and payable by the Borrowers on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this AgreementInterest Period.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Equifax Inc)
Prepayments. (a) The Borrower Company may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be in a form reasonably acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative CurrenciesLoans, and (CB) on the date of prepayment of Base Rate Loans or Daily Floating LIBOR Rate Loans; (ii) any prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars or Daily Floating LIBOR Rate Loans shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; and (iv) any such notice may be conditioned upon the effectiveness of other Indebtedness or the occurrence of one or more other transactions or events. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such paymentprepayment (based on such Lender’s Pro Rata Share). If such notice is given by the BorrowerCompany, the Borrower Company shall irrevocably make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan or Daily Floating LIBOR Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable3.05.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice to the Administrative AgentAgent in writing (delivered by hand or facsimile or other electronic transmission (including email)), at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three 3 Business Days prior to any date of prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars, and (B) four 1 Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) Day prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate LoansLoans or the Term Loan; (ii) any prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 100,000 in excess thereof; and (iviii) any prepayment of Base Rate Loans under any such credit facility or the Term Loan shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the whether such prepayment is to be appliedapplied to the Revolving Loans or the Term Loan, and and, with respect to Revolving Loans, the Type(s) of Loans to be prepaid and, if Eurocurrency Eurodollar Rate Loans are to be prepaidrepaid, the Interest Period(s) of such Eurodollar Rate Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.04. Each such prepayment shall be applied to the applicable Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason (including without limitation those arising from a reduction of the Total Borrowing Base described in Section 4.05) the aggregate Outstanding Amount of Revolving Outstandings Loans and L/C Obligations at any time exceed exceeds the Aggregate Revolving Credit total Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.04(b) unless there remains any such excess after the prepayment in full of the Revolving Loans; and provided further, however, that the Total Revolving Outstandings exceed provisions of Section 4.06 shall control in the Aggregate Revolving Credit Commitments then in effectevent that the reason for such excess is due to the redetermination of the Borrowing Base pursuant to Section 4.02 or Section 4.03.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount may make a prepayment of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal pursuant to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effectSection 4.06.
(d) In addition to any required payments On the fifteenth day of principal of the Term Loans and any optional payments of principal of the Term Loans and each calendar month, Borrower shall prepay the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) % of Excess Cash Flow for the fiscal year covered by such financial statements and measured previous calendar month, as of reflected in the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal yearReport. For purposes of To effectuate the payment required under this Section 2.06(d)(iv2.04(d), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount Mutual of Consolidated Senior Secured First Lien IndebtednessOmaha, as reduced the depository bank, shall, and Borrower hereby authorizes Mutual of Omaha to, initiate debit entries to any and all accounts held by giving Borrower or any Subsidiary thereof with Mutual of Omaha and to debit such payment amount from such accounts. This authorization to initiate debit entries shall remain in full force and effect until Administrative Agent terminates such arrangement. Borrower represents that Borrower or a Subsidiary thereof, or any one or more of them, is and will be the owner(s) of all funds in such accounts. Borrower, for itself and its Subsidiaries, acknowledges that (i) such debit entries may cause an overdraft of such accounts which may result in Mutual of Omaha’s refusal to honor items drawn on such accounts until adequate deposits are made to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00account, and (Cii) fifty-percent (50%), provided that such prepayment shall only if a debit is not made the payment may be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than late or equal to 2.00 to 1.00past due.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or fivefive Business Days, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 100,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 100,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Borrower may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $500,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower at any time that the Total 50 Outstandings at such time exceed an amount equal to 105% of the Aggregate Commitments then in effect, then, within five Business Days after receipt of such notice, the Borrower shall prepay Loans and/or the Borrower shall Cash Collateralize the L/C Obligations in an aggregate amount at least equal to such excess; provided, however, that, subject to the provisions of Section 2.15(a), the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless, after the prepayment in full of the Loans, the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(d) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two five Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Intersil Corp/De)
Prepayments. (a) The A Borrower may, upon notice delivery of a Notice of Loan Prepayment, to the Administrative Agent, at any time or from time to time time, voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. 12:00 noon, (A) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four (4) Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstandingoutstanding and (v) any prepayment of the Term A-1 Loan shall be applied ratably to the remaining principal amortization payments. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the a Borrower, the such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the applicable Committed Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent, if such Administrative Agent is not the same entity as the Swing Line Lender), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 (or, if less, the aggregate principal amount of Swing Line Loans then outstanding). Each such notice shall specify the date and amount of such prepayment. If for such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any reason time that the Total Revolving Outstandings at any such time exceed an amount equal to the Aggregate Revolving Credit Commitments then in effect, then, within two (2) Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay Revolving Loans and/or the Company shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed the Aggregate Revolving Commitments then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.15, the Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral, in reasonable amount, be provided in order to protect against the results of further exchange rate fluctuations.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two (2) Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving such Loans (or, if necessary, Cash Collateralize Letters of Credit) in an aggregate amount sufficient to reduce such Outstanding Amount of Revolving Loans as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penaltypenalty (except as set forth in the second proviso to this sentence or as otherwise agreed with any Lenders in respect of any increase in the Facilities pursuant to Section 2.14); provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars, and (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 or 100,000or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; provided, further, that, in the event that on or prior to the first anniversary of the Closing Date, the Borrower (x) makes any prepayment of Term Loans in connection with any Repricing Transaction, or (y) effects any amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each Term B Lender, (I) in the case of clause (x), a prepayment premium in an amount equal to 1.00% of the principal amount so prepaid and (II) in the case of clause (y), a payment equal to 1.00% of the aggregate amount of the Term B Loans outstanding immediately prior to such amendment that have been repriced. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid prepaid, whether the Committed Loans to be repaid are Revolving Credit Loans or Term B Loans and, if Eurocurrency Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the Lenders in respect of the applicable Lenders Facility in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Credit Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans, the Total Revolving Outstandings exceed the Aggregate aggregate Revolving Credit Commitments then in effect.
(cd) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Within ten (10) Business Days after the receipt by the Parent or any of such noticeits Restricted Subsidiaries of Net Cash Proceeds of any Disposition (other than Dispositions expressly permitted under Section 8.05(a)-(d)) or from any Extraordinary Loss from and after the Closing Date, the Borrower shall prepay Revolving repay Loans (or, if necessary, Cash Collateralize Letters of Credit) in an aggregate principal amount sufficient equal to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and (such prepayments to be applied as set forth in clause (h) below); provided, that if the Borrower shall makecertify at the time of such receipt that it, the Parent or shall cause each applicable any of their Restricted Subsidiary Subsidiaries intends to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%i) of Reinvest such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 within twelve (whether in one 12) months of such receipt or (ii) enter into a series of related transactions); provided that no mandatory prepayment on account of any legally binding commitment to Reinvest such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve (12) months following the receipt of such Net Cash Proceeds, with no later than six (6) months after the amount end of such twelve (12) month period, the Borrower or such Restricted Subsidiary may use such Net Cash Proceeds for such purposes; provided further, that to the extent the Borrower or such Restricted Subsidiary shall not have (i) Reinvested 100% of such Net Cash Proceeds unused by not later than twelve (12) months after the receipt thereof or (ii) entered into a legally binding commitment to Reinvest such twelve-Net Cash Proceeds within twelve (12) months and Reinvested such Net Cash Proceeds no later than six (6) months after the end of such twelve (12) month period being period, the Borrower shall use any such remaining Net Cash Proceeds to repay Loans on such date; and provided, further, that the Borrower shall not be required to be applied repay Loans pursuant to this clause (d) unless and until the aggregate amount of Net Cash Proceeds the Borrower is required to use to prepay Loans pursuant to this clause (d) is equal to or greater than $15,000,000 (and at such prepayment on time, the last day of Borrower shall prepay the Loans using all such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this AgreementNet Cash Proceeds).
(iie) The Borrower shall make, Within five (5) Business Days after the receipt by the Parent or shall cause each applicable any of its Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit Subsidiaries of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after from the Amendment Date from each private incurrence, issuance or public issuance of Indebtedness of sale by the Borrower Parent or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) of Indebtedness (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as Indebtedness expressly permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (dby Section 8.03), as applicable) is greater than 3.50 the Borrower shall repay Loans in an aggregate principal amount equal to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt 100% of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice such prepayments to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting be applied as set forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(iiclause (h) only to issuances of Indebtedness that are permitted under Sections 8.03(lbelow), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(ivf) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), beginning with the fiscal year ending December 31, 2015, the Borrower shall make a prepayment to the Administrative Agent, for the benefit prepay an aggregate principal amount of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined belowi) 75% of Excess Cash Flow for the fiscal year covered by such financial statements and measured (such prepayments to be applied as set forth in clause (h) below) minus (ii) the aggregate amount of the end voluntary prepayments of each Term B Loans made during such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010pursuant to Section 2.05(a); provided that for such percentage shall be reduced to 50% if the fiscal year Consolidated Secured Leverage Ratio as of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit last day of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but year was less than or equal to 3.00 to 1.003.00:1.00; and provided, and (Cfurther, that no mandatory prepayment under this Section 2.05(f) fifty-percent (50%), provided that such prepayment shall only be required to be made at if the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio as of the last day of the applicable fiscal year was less than or equal to 2.00 2.00:1.00.
(g) [Reserved].
(h) All prepayments of Loans made pursuant to 1.00clauses (d), (e) or (f) of this Section 2.05 shall be applied first, ratably to the Term B Loans and to any incremental term loan tranche (other than any Junior Term Tranche), second, once the Term B Loans and any incremental term loan tranche (other than any Junior Term Tranche) have been repaid in full, ratably to repay the Revolving Credit Loans and reduce the Revolving Credit Facility and third, once the Term B Loans, any incremental term loan tranche (other than any Junior Term Tranche) and the Revolving Credit Loans have been repaid in full and the Revolving Credit Commitments have been terminated, ratably to any Junior Term Tranches.
(i) All prepayments of Term B Loans shall be applied to the scheduled installments of Term B Loans ratably in accordance with the maturity thereof.
(j) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term B Loans required to be made pursuant to Sections 2.05(d)-(f) at least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each appropriate Lender of the contents of the Borrower’s prepayment notice and of such appropriate Lender’s Applicable Percentage of the prepayment. Each Term B Lender may reject all or a portion of its Applicable Percentage of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term B Loans required to be made pursuant to Sections 2.05(d)-(f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term B Loans to be rejected by such Lender. If a Term B Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term B Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term B Loans. Any Declined Proceeds remaining thereafter shall be retained by the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Global Cash Access Holdings, Inc.)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) 10:00 a.m., Chicago time, three (3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) 10:00 a.m., Applicable Time, four (4) Business Days (or fivefive (5), in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) 1:00 p.m., Chicago time, on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iviii) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof thereof, or, in each case, if less, the entire principal amount thereof then outstanding; and (iv) any prepayment of outstanding Term Loans pursuant to this Section 2.05 shall be applied to the principal repayment installments thereof in inverse order of maturity. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid prepaid, and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) Borrower may, upon notice to Agent, at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by Agent not later than 2:00 p.m., Chicago time, on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(cd) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans and L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, and/or Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit then in effect. Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(de) In addition to any required payments No optional prepayment of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to denominated in an Alternative Currency may be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later other than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 Period for such fiscal year. For purposes of this Section 2.06(d)(iv)Revolving Loans, unless the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00Revolving Lenders consent thereto.
Appears in 1 contract
Prepayments. (a) The Subject to the terms of Section 2.9 hereof, the Borrower mayshall have the right at its option at any time and from time to time to prepay (i) any Base Rate Loan, in whole or in part, upon at least one (1) Business Day's prior written, facsimile, or telephonic (provided that any such telephonic notice is immediately confirmed in writing) notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be Agent received by the Administrative Agent not later than 11:00 a.m. (A11 a.m., New York time) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or fiveon such day, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 or a whole such greater amount which is an integral multiple of $1,000,000 if prepaid in excess thereof; part and (iiiii) any prepayment of Eurocurrency Rate Revolving Loans denominated Eurodollar Loan, in Alternative Currencies shall be whole or in a minimum principal amount of $2,000,000 part, upon at least three (3) Business Days' prior written, facsimile, or a whole multiple of $500,000 in excess thereof; and telephonic (iv) any prepayment of Base Rate Loans under provided that any such credit facility shall be telephonic notice is immediately confirmed in a writing) notice received not later than 11 a.m., New York time) on such day, in the principal amount of $3,000,000 or a whole such greater amount which is an integral multiple of $1,000,000 if prepaid in excess thereof or, in each case, the entire principal amount thereof then outstandingpart. Each such notice of prepayment shall specify the date and amount of such prepaymentprepayment date, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans New Term Loan to be prepaid andand the principal amount thereof, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata irrevocable and shall commit the Borrower to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of prepay each such notice, and of Loan in the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified stated therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied the New Term Loans by all accrued interest on the amount prepaid, together with any additional amounts required Borrower pursuant to this Section 4.05. Each such prepayment 2.6 shall be applied to the Loans prepayment of the applicable Lenders principal of the New Term Loans in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablethe inverse order of maturity.
(b) If for any reason Following the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, end of each Fiscal Year of the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize (commencing with the L/C - BA Obligations in an aggregate amount equal to such excess; providedFiscal Year ending December 31, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice2004), the Borrower shall prepay Revolving the New Term Loans (or, if necessary, Cash Collateralize Letters of Credit) in an aggregate amount sufficient equal to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 10050% of the Alternative Currency Sublimit then Excess Cash Flow in effect.
(dexcess of $3,000,000 for such Fiscal Year. Each prepayment pursuant to this Section 2.6(b) In addition to any shall be made on or before the date on which Financial Statements are required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made delivered pursuant to Section 5.1(a) with respect to the Administrative Agent Fiscal Year for the benefit of the applicable Lenders, within the time period specified below:
which Excess Cash Flow is being calculated (i) No and in any event no later than 30 calendar one hundred five (105) days following after the receipt end of any Net Cash Proceeds from any Disposition permitted by such Fiscal Year). Prior to the making of each prepayment pursuant to this Section 8.05(e2.6(b), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net and each New Term Lender, an Excess Cash Proceeds and the Borrower shall makeFlow Certificate, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(cSection 5.1(g) and (d)hereof, as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include signed by a certificate of a Responsible Financial Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing calculation of Excess Cash Flow for the applicable Fiscal Year.
(c) Subject to the terms of the Intercreditor Agreement, no later than one (1) Business Day after the receipt of any Net Cash Proceeds by, on behalf of, or at the direction of such issuance; provided that despite any Loan Party or any Subsidiary of any Loan Party from any of the application following: (i) any exercise by any of this Section 2.06(d)(iithe holders of any of the New Warrants, (ii) only to issuances any refinancing of all or any portion of the outstanding New Term Loans hereunder, (iii) any issuance by any Loan Party of any Indebtedness that are (other than Indebtedness permitted under Sections 8.03(lSection 6.1 hereof), (niv) any Sale Leaseback Transaction, other than a Sale Leaseback Transaction permitted by Section 6.8 hereof, or (ov) any sale or other disposition of any asset of a Loan Party permitted by Section 6.7(g) and in accordance with and subject to Section 6.7(g), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to prepay the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the New Term Loans in an amount equal to fifty percent (50%) 100% of such Net Cash Proceeds; provided, that the acceptance by the Administrative Agent or any New Term Lender of any prepayment by the Borrower on account of the occurrence of any of the transactions or events set forth in this Section 2.6(c) that shall also constitute an Event of Default hereunder shall not constitute a waiver by the Administrative Agent or any such New Term Lender of the rights and remedies that it would otherwise have under this Credit Agreement or at law as a result of the occurrence and during the continuance of such Event of Default.
(d) Subject to the terms of the Intercreditor Agreement, not later than two (2) Business Days following the receipt by, on behalf of or at the direction of, the Borrower or any other Loan Party (or by the Collateral Agent as loss payee), of any payment of Net Cash Proceeds of any Recovery Event (other than Net Cash Proceeds which constitute Condemnation Proceeds or proceeds of any insurance with respect to any of the Collateral) (provided, that so long as no Default or Event of Default shall have occurred and then be continuing such Net Cash Proceeds received after the Amendment Date from in connection with any Person other than Recovery Event (or any portion thereof) may be expended or irrevocably committed by the Borrower or any Subsidiary other Loan Party to repair or replace the property which was the subject of such Recovery Event as promptly as practicable but in any event within 180 days of such loss, damage or injury, except that in the Borrower from each private or public issuance of Equity Interests of event that any such property shall constitute a Real Property Asset, the Borrower or any Restricted Subsidiary if at other such Loan Party may repair or replace such Real Property Asset within 12 months of such loss, damage or injury, and, in any case of the time proposed repair or replacement of issuing any such Equity Interests property, the Consolidated Leverage Ratio Borrower shall furnish to the Administrative Agent evidence satisfactory to the Administrative Agent and shall have certified to the Administrative Agent that such proceeds (calculated on a pro forma basis in accordance or such proceeds together with Sections 1.04(cother funds which are available to the Borrower and permitted to be used for such purpose pursuant to the terms hereof) and are sufficient to repair or replace such property (dpending which the Administrative Agent shall hold such proceeds), the Borrower shall prepay or, to the extent the Administrative Agent is loss payee under any insurance policy (if applicable), irrevocably direct the Administrative Agent to apply as applicable) is greater than 3.50 a prepayment, an amount equal to 1.00. Each prepayment of 100% (or such lesser percentage which represents the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt remaining portion of such Net Cash Proceeds and upon not less than five expended or committed pursuant to the first parenthetical phrase hereof) of such Net Cash Proceeds; provided, however, that with respect to tangible property subject to any Permitted Encumbrance, no such prepayment shall be required to the extent that this Section 2.6(d) would require an application of proceeds of any Recovery Event that would violate or breach any of the provisions of the instruments or documents under which such Permitted Encumbrance arises or which governs the application of proceeds.
(5e) Business Days’ prior written notice Concurrently with the making of any prepayment pursuant to Section 2.6(b), 2.6(c) or 2.6(d), the Borrower shall deliver to the Administrative Agent, which notice shall include a certificate of signed by a Responsible Financial Officer of the Borrower setting forth in reasonable detail a reasonably detailed calculation of the calculations utilized in computing the Net Cash Proceeds amount of such issuance. prepayment.
(f) All prepayments of New Term Loans under this Section 2.6 shall, as regards Interest Rate Type, be applied first to Base Rate Loans then to Eurodollar Loans in the order of the scheduled expiry of Interest Periods with respect thereto (i.e. those Eurodollar Loans with Interest Periods which end sooner would be paid before those with Interest Periods which end later).
(g) All prepayments under this Section 2.6 shall be accompanied by accrued but unpaid interest on the principal amount being prepaid to (but not including) the date of prepayment.
(h) Notwithstanding the application terms of this Section 2.06(d)(iii) 2.6, if at any time the mandatory prepayment of any New Term Loan would result, after giving effect to any issuance of Equity Interests, nothing the prepayment and other procedures set forth in this Section 2.06(d)(iii) shall be deemed to permit any issuance 2.6 and Section 2.9 of Equity Interests of this Credit Agreement, in the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises incurring costs as a result of Eurodollar Loans ("Affected Eurodollar Loans") being prepaid other than on the issuance last day of any such Equity an Interest Period applicable thereto, which costs are required to be paid hereunder, then the Borrower may, in its sole discretion, deposit amounts that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements otherwise would have been delivered paid in respect of the Affected Eurodollar Loans with the Administrative Agent (which amount must be equal in amount to the amount of the Affected Eurodollar Loans not immediately prepaid) to be held as a security for the obligations of the Borrower to make such mandatory prepayment pursuant to Section 7.01(a) a cash collateral agreement to be entered into in form and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment substance reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, for with such cash collateral to be directly applied upon the benefit first occurrence or occurrences thereafter of the last day of an Interest Period applicable Lenders, to each relevant New Term Loan that is a Eurodollar Loan (or such earlier date or dates as shall be requested by the Borrower) to repay an aggregate principal amount of the Outstanding Amount of the Term such Eurodollar Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment Affected Eurodollar Loans not initially repaid pursuant to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00sentence.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Thermadyne Holdings Corp /De)
Prepayments. (a) The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 100,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Borrower may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower at any time that the Total Outstandings at such time exceed the Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Loans and/or the Borrower shall Cash Collateralize the L/C Obligations 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 Commitments then in effect; provided, however, that, subject to the provisions of Section 2.03(g)(ii), the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(d) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Northwest Pipe Co)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars, (B) four three Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Eurodollar Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Eurodollar Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) and Class(es) of Loans to be prepaid and, if Eurocurrency Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Revolving Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.20, each such prepayment shall be applied to the applicable Loans of the applicable Lenders in accordance with their Pro Rata respective Applicable Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablePercentages.
(b) No Bid Loan may be prepaid without the prior consent of the applicable Bid Loan Lender.
(c) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower Borrowers shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, provided that the Borrower Borrowers shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.07(d) unless after the prepayment in full of the Revolving Loans, Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(ce) If the Administrative Agent notifies the Borrower at for any time that reason the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such noticeeffect by more than $5,000,000, the Borrower Borrowers shall immediately prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to , provided that such mandatory prepayment of any required payments of principal Loans denominated in Alternative Currencies may be delayed until the last day of the Term Interest Period applicable to such Loans and any optional payments of principal of if the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower Borrowers shall make the following required prepayments, each such payment deposit or cause to be made to deposited, on the Administrative Agent for the benefit of the applicable Lendersday prepayment would have otherwise been required, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted in a cash collateral account opened by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the principal amount of such Net Cash Proceeds unused after delayed mandatory prepayment of Loans denominated in Alternative Currencies and any accrued but unpaid interest thereon; provided further, that any amounts still outstanding following application of such twelve-month period being required to cash collateral shall be applied to such prepayment immediately due and payable by the Borrowers on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this AgreementInterest Period.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Equifax Inc)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in U.S. Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in a Special Notice CurrenciesCurrency) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in U.S. Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 500,000 or a whole multiple of $500,000 100,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $1,000,000 or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason (other than due to changes in currency exchange rates) the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effectat such time, the Borrower Borrowers shall immediately prepay Revolving Loans and/or the Company shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess, and such prepayments of Loans shall be applied first, to the Swing Line Loans, and second, ratably to the outstanding Committed Loans having such Interest Periods as the Company may specify or, if not so specified by the Company, as determined by the Administrative Agent; provided, however, provided that the Borrower Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless unless, after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount that, due to currency fluctuations affecting outstanding Loans or Letters of all Revolving Loans Credit denominated in Alternative Currencies Currencies, the Total Outstandings at such time exceeds exceed an amount equal to 105% of the Alternative Currency Sublimit then in effectAggregate Commitments at such time, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) L/C Obligations 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 Alternative Currency Sublimit Aggregate Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time the Company shall not be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net to Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made Collateralize L/C Obligations pursuant to this Section 2.06(d)(ii2.05(d) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations. All prepayments under this clause (d) shall be made within ten (10) Business Days of receipt of applied to outstanding Loans having such Net Cash Proceeds and upon Interest Periods as the Company may specify or, if not less than five (5) Business Days’ prior written notice to so specified by the Company, as determined by the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice delivery to the Administrative AgentAgent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility any Borrowing in whole or in part part, without premium or penalty; provided that (i) such notice Notice of Loan Prepayment must be received by the Administrative Agent not later than 11:00 a.m. (New York City time) (A) three two (2) U.S. Government Securities Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollarsany Term SOFR Borrowing, (B) four five (5) U.S. Government Securities Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, any Daily Simple SOFR Borrowing (if such Type of Borrowing is applicable pursuant to Section 3.03) and (C) on the date of prepayment of Base Rate Loans; and (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars any Term SOFR Borrowing or Daily Simple SOFR Borrowing shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) , and any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility Borrowing shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice Notice of Loan prepayment shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are Borrowing or Borrowings to be prepaid.
(b) In the event and on each occasion that, after the making of the Loans on the Funding Date, the Interest Period(sBorrower or any Subsidiary receives any Net Cash Proceeds in respect of any Specified Asset Sale, the Borrower shall, on or prior to the third Business Day after such Net Cash Proceeds are received (including, for the avoidance of doubt, deemed receipt thereof in accordance with the definition of the term “Net Cash Proceeds”) by the Borrower or any Subsidiary, prepay Borrowings in an amount equal to the lesser of (i) the aggregate principal amount of Loans then outstanding and (ii) 100% of such LoansNet Cash Proceeds. Prepayments The Borrower shall provide the Administrative Agent with prompt written notice of any Specified Asset Sale (or any other event specified in the definition of the Term term “Net Cash Proceeds”) giving rise to a mandatory prepayment of Loans shall be applied pro rata pursuant to remaining installments this Section 2.05(b), specifying the date and amount of such prepayment (and including a calculation in reasonable detail of the scheduled amortization amount of such Net Cash Proceeds) and the applicable Term Loan. Borrowing or Borrowings to be prepaid.
(c) The Administrative Agent will promptly notify each applicable Lender of its receipt of each such noticeany notice under Section 2.05(a) or 2.05(b), and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If any such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that, subject to Section 3.05, in the case of any prepayment under Section 2.05(a), such notice may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified prepayment date) if such condition is not satisfied. Any prepayment of a Eurocurrency Rate Loan Loans shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant . Subject to Section 4.05. Each 2.16, each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice (which notice shall be in a form acceptable to the Administrative Agent) to the Administrative Agent, at any time or from time to time time, voluntarily prepay Revolving Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that provided, that, unless otherwise agreed by the Administrative Agent: (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. 12:00 p.m. (A) three two (2) Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in DollarsTerm SOFR Loans, (B) four (4) Business Days (or fivefive (5) Business Days, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in any Alternative CurrenciesCurrency Loans, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Term SOFR Loans or Alternative Currency Loans shall be in a principal amount of the Dollar Equivalent of $5,000,000 or a whole multiple of the Dollar Equivalent of $1,000,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); and (iii) any prepayment of Base Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 100,000 in excess thereof (or, in each caseif less, the entire principal amount thereof then outstanding). Each such notice shall specify the date date, amount and amount currency of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Revolving Loans to be prepaid andprepaid, and if Eurocurrency Term SOFR Loans or Alternative Currency Term Rate Loans are to be prepaid, the Interest Period(s) of such Revolving Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the a Borrower, the such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate any Revolving Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 1.13 and Section 2.17, each such prepayment shall be applied to the Revolving Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) The Company may, upon notice (which notice shall be in a form acceptable to the applicable U.S. Swing Line Lender and the Administrative Agent) to the applicable U.S. Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay U.S. Swing Line Loans in whole or in part without premium or penalty; provided, that, unless otherwise agreed by the applicable U.S. Swing Line Lender, (i) such notice must be received by the applicable U.S. Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) Each Borrower may, upon notice (which notice shall be in a form acceptable to the applicable Euro Swing Line Lender and the Administrative Agent) to the applicable Euro Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Euro Swing Line Loans in whole or in part without premium or penalty; provided, that, unless otherwise agreed by the applicable Euro Swing Line Lender, (i) such notice must be received by the applicable Euro Swing Line Lender and the Administrative Agent not later than 10:00 a.m., London time, on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by a Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower Borrowers shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, howeverthat, that the Borrower Borrowers shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(d) unless after the prepayment in full of the Revolving Loans, the U.S. Swing Line Loans, and the Euro Swing Line Loans, the Total Revolving Outstandings at such time exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Itt Inc.)
Prepayments. (a) The Any Borrower may, upon notice to the Administrative AgentAgent from such Borrower, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. 1:00 p.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, five Business Days in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment CHAR1\1461746v12 of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof1,000,000; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the a Borrower, the such Borrower shall make such prepayment prepayment, and the payment amount specified in such notice shall be due and payable payable, on the date specified thereinin the applicable notice; provided that if such notice is given in connection with a full or partial refinancing of the Commitments, such notice may condition the prepayment upon the effectiveness of such refinancing Indebtedness, in which case such notice may be revoked by such Borrower (by notice to the Administrative Agent on or prior to the date of such prepayment) if such condition is not satisfied. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.13, each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for the Administrative Agent notifies the Borrowers at any reason time that (i) solely as a result of fluctuations in currency exchange rates, the Total Revolving Outstandings at any such time exceed an amount equal to 105% of the Aggregate Commitments then in effect or (ii) other than as a result of fluctuations in currency exchange rates, the Total Outstandings at such time exceed the Aggregate Revolving Credit Commitments then in effect, then, in either case, within two Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount at least equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower Borrowers at any time that (i) solely as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect or (ii) other than as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Loans denominated in Alternative Currencies at such time exceeds the Alternative Currency Sublimit then in effect, then, in either case, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Amazon Com Inc)
Prepayments. (a) The Borrower Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 10:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Revolving Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Revolving Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Revolving Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding 's Pro Rata Share of such payment)prepayment. If such notice is given by the a Borrower, the such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaidthereon, together with any additional amounts required pursuant to Section 4.053.5. Each Subject to Section 2.16, each such prepayment shall be applied to the Revolving Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) DeVry may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 12:00 (noon) on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by DeVry, DeVry shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower DeVry shall immediately prepay Revolving (or cause to be prepaid) Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower DeVry shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.5(c) unless after the prepayment in full of the Revolving Loans, Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(cd) If the Administrative Agent notifies the Borrower Borrowers at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105103% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower DeVry shall prepay Revolving (or cause to be prepaid) Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Devry Inc)
Prepayments. (a) The Borrower may, upon notice to Lender ----------- specifying that it is paying any Prime Rate Loan, pay without penalty or premium the Administrative Agent, Prime Loan in whole at any time or in part from time to time, by paying the principal amount to be paid, provided that partial prepayments shall be in an aggregate amount of at least $2,000,000.00 or any larger multiple of $1,000,000.00. Borrower may, upon at least three (3) Eurodollar Business Day`s irrevocable prior written notice to Lender, prepay all at any time or any portion from time to time voluntarily prepay Loans under of the Revolving Credit Facility or either Term unpaid principal balance of any LIBOR Loan Facility in whole or in part without premium or penalty; prior to maturity provided that (i) contemporaneously with each such notice must be received by prepayment Borrower shall pay all accrued and unpaid interest on the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior portion of the LIBOR Loan being prepaid to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on including the date of prepayment of Base Rate Loansprepayment; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars partial prepayments shall be in a principal an aggregate amount of at least $3,000,000 2,000,000.00 or a whole any larger multiple of $1,000,000 in excess thereof1,000,000.00; (iii) in no event may Borrower make any prepayment of Eurocurrency Rate Revolving on any LIBOR Loan that results in the remaining LIBOR Loans denominated in Alternative Currencies shall be in with respect to which a minimum principal amount of given Interest Period applies being greater than $2,000,000 or a whole multiple of 0.00 but less than $500,000 in excess thereof; 1,000,000.00 and (iv) any if Borrower is making a prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof orLIBOR Loan, in each case, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of contemporaneously with such prepayment, Borrower shall pay Lender the credit facility to which the prepayment is to be applied, funding losses and the Type(s) of Loans to be prepaid andother amounts, if Eurocurrency Rate Loans are to be prepaidany, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to under Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable2.08.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected voluntary prepayments made by Borrower under subsection (aSection 2.06(a) above, until the Loan has been paid in full, Borrower shall make the following required prepaymentscovenants and agrees to pay to Lender within ten (10) days after receipt thereof, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent One Hundred Percent (100%) of the Net Cash Proceeds net cash proceeds up to the amount received after the Amendment Date by Borrower from each private or public Borrower's issuance of Indebtedness of the Borrower any capital stock, membership interest or other equity interest, from any other debt issuance or equity issuance (or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligationshybrid thereof, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at including the time issuance of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (dtrust-preferred securities), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice or any subordinated debt received subsequent to the Administrative Agent, which notice shall include a certificate date of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Loan Agreement (Laclede Gas Co)
Prepayments. (a) The Borrower Borrowers may, upon notice to the Administrative Agent by the Borrower Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three 2:00 p.m. (Eastern time) 3 Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollarsor Cash Collateralization of Bankers’ Acceptances (or BA Equivalent Notes), (B) four Business Days 10:00 a.m. (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (CEastern time) on the date of prepayment of US Base Rate Loans and US Prime Rate Loans; , and (C) 10:00 a.m. (Eastern time) on the date of prepayment of Cdn. Prime Rate Loans (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars or Cash Collateralization Bankers’ Acceptances (or BA Equivalent Notes) shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iviii) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility prepayment (or Cash Collateralization with respect to which the prepayment is to be applied, Bankers’ Acceptances and the Type(sBA Equivalent Notes) of and whether such Loans to be prepaid and, if are Eurocurrency Rate Loans, Bankers’ Acceptances (or BA Equivalent Notes) or Base Rate Loans and whether such Loans are to be prepaid, the Interest Period(s) of such US Dollar Loans or Cdn. Dollar Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerBorrower Agent, the Borrower Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaidthereon, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.to
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Prepayments. (a) The Borrower may, upon notice to the Administrative AgentLender, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term any Loan Facility in whole or in part without premium or penalty; provided that (ia) such notice must be received by the Administrative Agent Lender not later than 11:00 a.m. (Ai) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (Bii) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (Ciii) on the date of prepayment of a Base Rate LoansLoan; (iib) any prepayment of a Eurocurrency Rate Loans denominated in Dollars Loan shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iiic) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility Loan shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the Loan to be prepaid, the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are Loan(s) to be prepaid, the Interest Period(s) of such Loans. Prepayments Partial prepayments of the Term Loans Loan shall be applied to reduce each remaining installment of principal thereof on a pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)basis. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaidthereon, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable3.05.
(bi) If for any reason the Total Revolving Outstandings Lender notifies the Borrower at any time exceed that the Aggregate Outstanding Amount of all Revolving Credit Commitments Loans and L/C Obligations (the “Total Revolving Outstandings”) at such time exceeds by $50,000 or more the Revolving Commitment then in effect, then, within two Business Days after receipt of such notice, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Revolving Commitment then in effect; provided, however, that that, subject to the provisions of Section 2.03(l), the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.04(b) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments Commitment then in effect. The Lender may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(cii) If the Administrative Agent Lender notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of by $50,000 or more the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
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Sources: Credit Agreement (Copart Inc)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 3,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 2:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. If for such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any reason time that the Total Revolving Outstandings at any such time exceed the Aggregate Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay Revolving Loans and/or the Company shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed the Aggregate Commitments then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Term Loans under the and/or Revolving Credit Facility or either Term Loan Facility Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share portion of such prepayment (including, in the event based on such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage in respect of such paymentthe relevant Facility). If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment of the outstanding Term Loans pursuant to this Section 2.05(a) shall be applied to the Loans of principal repayment installments thereof on a pro-rata basis, and each such prepayment shall be paid to the applicable Term Lenders in accordance with their Pro Rata respective Applicable Percentages in respect of the Term Facility. Each prepayment of outstanding Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicableCredit Loans shall be applied to the Revolving Credit Lenders in accordance with their respective Applicable Percentages in respect of the Revolving Credit Facility.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all under the Revolving Loans denominated in Alternative Currencies Credit Facility at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit all Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Credit Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit Revolving Credit Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above; provided that, the Borrower shall make the following required prepayments, each such payment to be made subject to the Administrative Agent for the benefit provisions of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e2.03(g)(ii), the Borrower Company shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(c) shall be made within ten (10) Business Days unless after the prepayment in full of receipt the Revolving Credit Loans the Total Revolving Credit Outstandings exceed the Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice cash collateral, request that additional cash collateral be provided in order to protect against the Administrative Agent, which notice shall include a certificate results of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementfurther exchange rate fluctuations.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility Individual Currency Loans made to such Borrower in whole or in part without premium or penalty; provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars(x) Dollars or (y) an Alternative Currency other than a Special Notice Currency, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Special Notice Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s Core Currency Applicable Percentage (in the case of Committed Loans) or ratable share (in the case of Individual Currency Loans) of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that if such notice is given in connection with a full or partial refinancing of the Commitments, such notice may condition the prepayment upon the effectiveness of such refinancing Indebtedness, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the date of such prepayment) if such condition is not satisfied; provided that the applicable Borrower shall pay any amounts required pursuant to Section 3.05. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.18, NYDOCS02/1167307 49 each such prepayment of Committed Loans shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Core Currency Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that (i) solely as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Commitments then in effect or that the aggregate Revolving Credit Exposure exceeds an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments or (ii) other than as a result of fluctuations in currency exchange rates, the Total Outstandings at such time exceed the Aggregate Commitments then in effecteffect or that the aggregate Revolving Credit Exposures exceed the Aggregate Commitments, then, in either case, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters the L/C Obligations in an aggregate amount at least equal to such excess; provided, however, that, subject to the provisions of CreditSection 2.17(a), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any time that (i) solely as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Loans denominated in Non-Core Currency at such time exceed an amount equal to 105% of the aggregate Individual Currency Commitments with respect to such currency then in effect or (ii) other than as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Loans denominated in any Non-Core Currency at such time exceeds the aggregate Individual Currency Commitments with respect to such currency then in effect, then, in either case, within four Business Days after receipt of such notice, the Borrowers shall prepay Loans in such currency 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 Alternative such aggregate Individual Currency Sublimit Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Tiffany & Co)
Prepayments. (a) The Each Borrower may, upon notice by the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. a.m., Chicago time, (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Note Currencies) prior to any the date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 500,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.5. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) The Company may, upon notice by the Company to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m., Chicago time, on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) The applicable Designated Subsidiary may, upon notice by the Company to the Foreign Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Foreign Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 4:00 p.m., Italy time, on the Business Day prior to the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of U.S.$100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the applicable Designated Subsidiary shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.6(d) unless after the prepayment in full of the Revolving Loans, Committed Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Andrew Corp)
Prepayments. (a) The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of the Alternative Currency Equivalent of $2,000,000 5,000,000 or a whole multiple of the Alternative Currency Equivalent of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share portion of such prepayment (including, in the event based on such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage of such paymentprepayment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied paid to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then respective Applicable Percentages in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full respect of each of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectrelevant Facilities.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; , (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; , and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) If for any reason The Borrower may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $250,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, and/or the Borrower shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit Aggregate Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above; provided, the Borrower shall make the following required prepaymentshowever, each such payment to be made that, subject to the Administrative Agent for the benefit provisions of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e2.03(g)(ii), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(c) shall be made within ten (10) Business Days unless after the prepayment in full of receipt the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice Collateral, request that additional Cash Collateral be provided in order to protect against the Administrative Agent, which notice shall include a certificate results of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementfurther exchange rate fluctuations.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Tech Data Corp)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. 10:00 a.m.
(A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share 's Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 12:00 noon on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed an amount equal to 105100% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Commitments then in effect; provided, however, that, subject to the provisions of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any time that the portion of the Total Outstandings denominated in Alternative Currencies at such time exceeds an amount equal to 100% of the Alternative Currency Sublimit then in effect.
(d) In addition , then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to any required payments of principal reduce such portion of the Term Loans and any optional payments Total Outstandings as of principal such date of payment to an amount not to exceed 100% of the Term Loans and the Revolving Loans effected under subsection (a) aboveAlternative Currency Sublimit then in effect; provided, the Borrower shall make the following required prepaymentshowever, each such payment to be made that, subject to the Administrative Agent for the benefit provisions of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e2.03(g)(ii), the Borrower Company shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(d) shall be made within ten (10) Business Days unless after the prepayment in full of receipt the Loans denominated in Alternative Currencies the portion of the Total Outstandings denominated in Alternative Currencies exceeds the Alternative Currency Sublimit then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice Collateral, request that additional Cash Collateral be provided in order to protect against the Administrative Agent, which notice shall include a certificate results of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementfurther exchange rate fluctuations.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Stericycle Inc)
Prepayments. (a) The Borrower or a Designated Borrower may, upon notice to the Administrative AgentAgent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender), at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. 12:00 noon Pacific Time (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, and (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate ABR Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in U.S. Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies a Foreign Currency shall be in a minimum principal amount of not less than the smallest amount of such Foreign Currency that has an Equivalent Amount in excess of $2,000,000 or a 5,000,000 and in an whole multiple of $500,000 the smallest amount of such Foreign Currency that has an Equivalent Amount in excess thereofof $1,000,000; and (iv) any prepayment of Base Rate ABR Loans under any such credit facility shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower or a Designated Borrower, the Borrower or such Designated Borrower, as applicable, shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for at any reason time, (i) other than as a result of fluctuations in currency exchange rates, the sum of the aggregate principal Dollar Amount of the Total Revolving Outstandings at any time exceed (calculated, with respect to Loans and LC Exposure denominated in Foreign Currencies, as of the most recent Computation Date with respect to each such Loans and LC Exposure) exceeds the Aggregate Revolving Credit Commitments then Commitments, or (ii) solely as a result of fluctuations in effectcurrency exchange rates, the aggregate principal Dollar Amount of the Total Outstandings (so calculated), as of the most recent Computation Date, exceeds one hundred five percent (105%) of the Aggregate Commitments, the Borrower and/or the Designated Borrowers shall immediately prepay Revolving Loans and/or Cash Collateralize repay Borrowings or cash collateralize LC Exposure in accordance with the L/C - BA Obligations procedures set forth in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit2.15(j) in an aggregate principal amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of cause (x) the Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Dollar Amount of the Term Loans in an amount equal to one hundred percent Total Outstandings (100%so calculated) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and the Aggregate Commitments or (Cy) fifty-percent the Dollar Amount of the aggregate Outstanding Amounts of the Lenders in respect of the Commitments (50%), provided that such prepayment shall only be required so calculated) to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00the total Commitments.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (PayPal Holdings, Inc.)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) 11:00 a.m., Chicago time, three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four 11:00 a.m., London time, three Business Days (or fivefour, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) 11:00 a.m., Chicago time, on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) The Company may, upon notice to the Swingline Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If, on any Calculation Date, (i) the aggregate Dollar Equivalents of the Outstanding Amount of all Loans made in Alternative Currencies exceeds an amount equal to 103% of the Alternative Currency Sublimit or (ii) the Total Outstandings (including the Dollar Equivalents of any Loan outstanding in a currency other than Dollars) exceed the Aggregate Commitments, the Borrowers (A) may, notwithstanding Section 2.02(a), (x) withdraw the Committed Loan Notice or Letter of Credit Application, if any is in effect for a Borrowing on such Calculation Date, or (y) amend the amount or requested currency of any such Committed Loan Notice or Letter of Credit Application, as applicable, (with the consent of the Administrative Agent, not to be unreasonably withheld, and subject to changes to funding requirements reasonably satisfactory to the Administrative Agent) and (B), to the extent necessary, shall within four Business Days of such Calculation Date, without notice or demand, repay (and, if such repayment does not eliminate such excess, Cash Collateralize outstanding L/C Obligations) outstanding Loans made in one or more Alternative Currencies or Dollars, as applicable, in an aggregate principal amount such that, after giving effect to the actions taken in clause (A) above and such repayment (or depositing Cash Collateral), the aggregate Dollar Equivalents of the Outstanding Amount of Loans made in Alternative Currencies do not exceed the Alternative Currency Sublimit and the Total Outstandings (including the Dollar Equivalents of any Loan outstanding in a currency other than Dollars) do exceed the Aggregate Commitments. If for any reason the Total Revolving Outstandings at any time exceed Outstanding Amount of all Swingline Loans exceeds the Aggregate Revolving Credit Commitments then in effectSwingline Sublimit, the Borrower Company shall immediately within two Business Days prepay Revolving the Swingline Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice to the Administrative AgentAgents, at any time or from time to time time, voluntarily prepay the Committed Loans under and the Revolving Credit Facility or either Term Loan Facility Loans of any Class in whole or in part without premium or penalty; provided that (iA) such notice must be in a form reasonably acceptable to the Agents and be received by the Administrative Agent Agents not later than 11:00 a.m. (Ax) 1:00 p.m. three (3) Business Days prior to any date of prepayment of Eurocurrency LIBOR Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (Cy) 11:00 a.m. on the any date of prepayment of Base Rate LoansLoans or Canadian Prime Rate Loans (and otherwise, one Business Days’ notice shall be required for any such prepayment); (iiB) any such prepayment of Eurocurrency LIBOR Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 the U.S. Dollar Equivalent of U.S.$5,000,000 or a whole multiple of $1,000,000 the U.S. Dollar Equivalent of U.S.$1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (ivC) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 U.S.$1,000,000 or a whole multiple of $U.S.$500,000 in excess thereof; and (D) any prepayment of Canadian Prime Rate Loans shall be in a principal amount of C$1,000,000 or a whole multiple of C$500,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify (w) the date and amount and currency of such prepayment, (x) whether the credit facility to which the prepayment is Loan to be appliedprepaid is a Term Loan or a Committed Loan (or other Borrowing, and if applicable), (y) the Type(s) of Loans to be prepaid and, and (z) if Eurocurrency LIBOR Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent Agents will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share portion of such prepayment (including, in the event based on such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such paymentApplicable Percentage). If such notice is given by the Borrowergiven, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided, that any such notice may state that such notice is conditioned upon the effectiveness of other credit facilities, debt issuances or incurrences, equity issuances or the occurrence of any other identifiable transaction, in which case such notice may be revoked by the Borrower (by notice to the Agents on or prior to the specified effective date) if such condition is not satisfied. Any prepayment of a Eurocurrency LIBOR Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.19, each such prepayment of the Term Loan shall be applied to the Loans of Term Loan and shall be paid to the applicable Lenders in accordance with their Pro Rata Revolving Sharesrespective Applicable Percentages of the Term Loan. Subject to Section 2.19, Pro Rata Term A Shares each such prepayment of the Committed Loan of any Class shall be applied to the Committed Loans outstanding in such Class on a pro rata basis among the applicable Lenders of such Class in accordance with their Applicable Percentages of the Committed Loans of such Class. The Borrower shall not be permitted to prepay any Bankers’ Acceptance or Pro Rata Term B SharesBA Equivalent Notes at any time; provided that the Borrower may Cash Collateralize any Bankers’ Acceptance or BA Equivalent Notes by depositing the full face amount of such Bankers’ Acceptance and/or BA Equivalent Notes for application to such Bankers’ Acceptance or BA Equivalent Notes, as applicablethe case may be, on the applicable Contract Maturity Date.
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Agents), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Agents not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of U.S.$100,000 in the case of U.S. Dollar Swing Line Loans (or such lesser amount as approved by the Swing Line Lender) and C$100,000 in the case of Canadian Dollar Swing Line Loans (or such lesser amount as approved by the Swing Line Lender). Each such notice shall specify the date and amount of such prepayment. If such notice is given, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings (or any Class thereof) at any time exceed the Aggregate Revolving Credit Commitments (or any Class thereof) then in effecteffect (or 105% of the Aggregate Commitments (or any Class thereof) then in effect solely to the extent due to currency fluctuation), the Borrower shall immediately promptly (and, in any event, within three (3) Business Days after receipt by the Borrower of written notice detailing such excess) prepay Revolving Loans Committed Loans, Cash Collateralize Bankers’ Acceptances and BA Equivalent Notes and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to (i) such excess, to the extent Committed Loans are being prepaid, or (ii) the Minimum Collateral Amount with respect to such excess, to the extent L/C Obligations are being Cash Collateralized, or (iii) the aggregate Face Amount thereof with respect to such excess, to the extent Bankers’ Acceptances and BA Equivalent Notes are being Cash Collateralized; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - Obligations, Bankers’ Acceptances or BA Obligations Equivalent Notes pursuant to this Section 2.06(bclause (c) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at ; provided further, however, that if it is determined on any time subsequent day that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at any such time prepaid or Cash Collateralized amount exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and excess, the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment may withdraw (by written notice to the Administrative AgentAgents) the amount by which such excess has been reduced. The Agents may, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if and from time to time after the Borrower informs the Administrative Agent no later than 30 days following the receipt initial deposit of such Net Cash Proceeds Collateral, request that additional Cash Collateral be provided in order to protect against the results of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any exchange rate fluctuations. No Default or Event of Default that arises shall arise hereunder or under any other Loan Document as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of currency fluctuations so long as the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) timely complies with the prepayment and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting Collateral requirements set forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement2.06.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Waste Connections, Inc.)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay the Committed Loans under the Revolving Credit Facility or either Term Loan Facility of such Borrower in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 9:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in U.S. Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies, or prepayment of Loans denominated in an Alternative Currency on a day other than the last day of the applicable Interest Period) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in U.S. Dollars shall be in a principal amount of $3,000,000 U.S.$1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 U.S.$1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 U.S.$500,000 or a whole multiple of $1,000,000 U.S.$100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Tranche 1 Lender of its receipt of each such noticenotice in respect of any Tranche 1 Loans, and of the amount of such Tranche 1 Lender’s ratable share Applicable Tranche 1 Percentage of such prepayment (includingand will promptly notify each Tranche 2 Lender of its receipt of each such notice in respect of any Tranche 2 Loans, in and of the event amount of such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Tranche 2 Lender’s Alternative Currency Funding Pro Rata Share Applicable Tranche 2 Percentage of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject sf-3344711 to Section 2.18, each such prepayment of Tranche 1 Loans shall be applied to the Tranche 1 Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans respective Applicable Tranche 1 Percentages and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit prepayment of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower Tranche 2 Loans shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit Tranche 2 Loans of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis Tranche 2 Lenders in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementtheir respective Applicable Tranche 2 Percentages.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Jacobs Engineering Group Inc /De/)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 500,000.00 or a whole multiple of $1,000,000 100,000.00 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 500,000.00 or a whole multiple of $500,000 100,000.00 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000.00 or a whole multiple of $1,000,000 100,000.00 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for the Administrative Agent notifies the Borrower at any reason time that the Total Revolving Outstandings at any such time exceed the Aggregate Revolving Credit Commitments then in effect, then, within three Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(b) unless after the prepayment in full of the Revolving Loans, Committed Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two three Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative AgentAgent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) substantially in the form of Exhibit G hereto (each, a “Notice of Prepayment”) at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility and Swingline Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. 1:00 p.m. (A) three two (2) Business Days prior to any date of prepayment of Eurocurrency Rate Committed Loans denominated in Dollars or CDOR Rate Loans, (B) four (4) Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, Currencies and (C) on the date of prepayment of Base Rate Committed Loans or Swingline Loans; (ii) any prepayment of Eurocurrency Rate Committed Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies or CDOR Rate Loans shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof (or in each case, the Dollar equivalent thereof); (iv) any prepayment of Base Rate Committed Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (ivv) any prepayment of Base Rate Swingline Loans under any such credit facility shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof or, in the case of each caseof clauses (ii), (iii), (iv) and (v), if less, the entire principal amount thereof then outstanding; and (vi) any such notice may be conditioned upon the effectiveness of other Indebtedness or the occurrence of one or more other transactions or events. Each such notice shall specify the class of Loans to be prepaid (Committed Loans or Swingline Loans), the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of such Loans to be prepaid and, if Eurocurrency Rate Loans or CDOR Rate Loans bearing interest by reference to the CDOR Screen Rate are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment). If such notice is given by prepayment (except for prepayments to be made directly to the BorrowerSwingline Lender as expressly provided herein, the Borrower shall make such prepayment and the payment amount specified in such notice which prepayments shall be due and payable on made to the date specified thereinSwingline Lender). Any prepayment of a Eurocurrency Rate Loan or a CDOR Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.15, each such prepayment of Committed Loans shall be applied to the Committed Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) Subject to Section 2.04(c), no Bid Loan may be prepaid without the prior consent of the applicable Bid Loan Lender.
(c) If for any reason the sum of the Total Revolving Outstandings Credit Exposure and the Outstanding Amount of all Bid Loans at any time exceed exceeds the Aggregate Revolving Credit Commitments then in effect, the Borrower Borrowers shall immediately promptly (and in any event within two (2) Business Days) prepay Revolving Loans and/or Cash Collateralize or cash collateralize LC Exposure in an account with the L/C - BA Obligations Administrative Agent pursuant to Section 2.18(j), as applicable, in an aggregate amount equal to such excess; provided, howeverwith each such prepayment applied first, that to the Borrower shall not be required principal amount of outstanding Swingline Loans, second, to Cash Collateralize the L/C - BA Obligations principal amount of outstanding Committed Loans, third, to provide cash collateral up to an amount equal to 105% of all LC Exposure at such time pursuant to this Section 2.06(b) unless after 2.18(j), and fourth, to the prepayment in full principal amount of the Revolving outstanding Bid Loans, in the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectinverse order of maturity of any such Bid Loans.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments then in effecteffect (including, without limitation, as a result of fluctuations in currency exchange rates), then, within two (2) Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit Aggregate Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, with each such payment to be made prepayment applied first to the Administrative Agent for the benefit principal amount of the applicable Lendersoutstanding Committed Loans, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver and second to the Administrative Agent a calculation of the principal amount of such Net Cash Proceeds and outstanding Bid Loans, in the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit inverse order of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account maturity of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this AgreementBid Loans.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Committed Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Committed Loans denominated in Alternative CurrenciesCurrencies , and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Committed Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Committed Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Committed Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason No Bid Loan may be prepaid without the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full prior consent of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectapplicable Bid Loan Lender.
(c) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $1,000,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed an amount equal to 105% of the difference of the Aggregate Commitments less the Alternative Currency Sublimit Reserve then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 difference of the Aggregate Commitments less the Alternative Currency Sublimit Reserve then in effect.
(de) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to If the Administrative Agent for notifies the benefit of the applicable Lenders, within the Company at any time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of that the Outstanding Amount of the Term all Loans denominated in Alternative Currencies at such time exceeds an amount equal to one hundred percent (100%) 105% of the difference of the Alternative Currency Sublimit less the Alternative Currency Reserve then in effect, then, within two Business Days after receipt of such Net Cash Proceeds received after notice, the Amendment Date that exceed $25,000,000 (whether Borrowers shall prepay Loans in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt sufficient to reduce such Outstanding Amount as of such Net Cash Proceeds date of its or its Restricted Subsidiary’s good faith intention payment to apply such Net Cash Proceeds an amount not to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit exceed 100% of the applicable Lenders, difference of the Outstanding Amount of Alternative Currency Sublimit less the Term Loans Alternative Currency Reserve then in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementeffect.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Adobe Systems Inc)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 8:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable Applicable Percentage (or other applicable share as provided herein) of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $1,000,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed an amount equal to 105102% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of Creditsuch date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that, subject to the provisions of Section 2.16(a)(ii), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all Loans denominated in Alternative Currencies at such time exceeds an amount equal to 102% of the Alternative Currency Sublimit then in effect, then, within four Business Days after receipt of such notice, the Borrowers shall prepay Loans 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Avnet Inc)
Prepayments. (ai) The Each Borrower may, upon notice from such Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Term Loans under the and/or Revolving Credit Facility or either Term Loan Facility Loans in whole or in part without premium or penalty; provided that provided, that, (iA) such notice must be received by the Administrative Agent not later than 11:00 a.m. a.m.
(A1) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B2) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C3) on the date of prepayment of Base Rate Loans; (iiB) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iiiC) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (D) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable affected Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share portion of such prepayment (including, in the event based on such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage in respect of such paymentthe relevant Facility). If such notice is given by the a Borrower, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall of Term Loans pursuant to this Section 2.05(a) shall, subject to Section 2.19, be applied to the Term Loans of on a pro rata basis and to the applicable principal repayment installments thereof on a pro rata basis, and each such prepayment shall be paid to the Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages in respect of each of the relevant Facilities.
(bii) If for Notwithstanding anything in any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made Loan Document to the Administrative Agent for contrary, so long as (w) no Default or Event of Default has occurred and is continuing, (x) the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower Company shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent certificate stating that (100%1) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a has occurred and is continuing or would result from the proposed prepayment described below and (2) each of the conditions set forth in this Section has been satisfied, (y) none of the Borrowers or any other Loan Party has any material non-public information with respect to the Company and its Subsidiaries (including Unrestricted Subsidiaries to the extent such Unrestricted Subsidiaries would constitute Subsidiaries but for being excluded from the definition of “Subsidiary”) or the securities of any Disposition of them that is has not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment been disclosed to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) Lenders generally (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this AgreementLenders who elect not to receive such information) and 8.03(n(z) if no proceeds of Revolving Credit Loans or Swing Line Loans are used for this purpose, the Company may prepay any portion of the outstanding Term Loans (and immediately and permanently cancel them) on the following basis:
(A) The Company shall have the right to make a voluntary prepayment of Term Loans at a discount to par pursuant to Discount Range Prepayment Offers or Solicited Discounted Prepayment Offers (any such prepayment, the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis “Discounted Loan Prepayment”), in each case made in accordance with Sections 1.04(cthis Section 2.05(a)(ii); provided, that, the Company shall not initiate any action under this Section 2.05(a)(ii) and (d), as applicable) is greater than 3.50 in order to 1.00. Each prepayment make a Discounted Loan Prepayment of the Loans in any tranche of Term Loans required to be made pursuant to this Section 2.06(d)(iiunless (I) shall be made within at least ten (10) Business Days shall have passed since the consummation of receipt the most recent Discounted Loan Prepayment of any Term Loan in such Net Cash Proceeds and upon tranche as a result of a prepayment made by the Company on the applicable Discounted Prepayment Effective Date; or (II) at least three (3) Business Days shall have passed since the date the Company was notified that no Lender was willing to accept any prepayment of any Term Loan in such tranche pursuant to a Discount Range Prepayment Notice or in the case of Solicited Discounted Prepayment Offers, the date of the Company’s election not less than to accept any Solicited Discounted Prepayment Offers relating to a Solicited Discount Prepayment Notice.
(1) Subject to the proviso to clause (A) above, the Company may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with five (5) Business Days’ prior written notice in the form of a Discount Range Prepayment Notice; provided, that, (I) any such solicitation shall be extended, at the sole discretion of the Company, to (x) each Term Lender and/or (y) each Term Lender with respect to any Term Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate principal amount of the relevant Loans (the “Discount Range Prepayment Amount”), the tranche or tranches of Term Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount Range”) of the principal amount of such Loans with respect to each relevant tranche of Term Loans willing to be prepaid by the Company (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such event, each such offer will be treated as separate offer pursuant to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application terms of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(lSection), (nIII) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each applicable Term Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding Term Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to such Lenders (othe “Discount Range Prepayment Response Date”), nothing in this Section 2.06(d)(ii. Each Term Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range (the “Submitted Discount”) at which such Term Lender is willing to allow prepayment of any or all of its then outstanding Term Loans of the applicable tranche or tranches and the maximum aggregate principal amount and tranches of such Term Lender’s Term Loans (the “Submitted Amount”) such Lender is willing to have prepaid at the Submitted Discount. Any Term Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or have declined to constitute accept a waiver or cure Discounted Loan Prepayment of any Default or Event of Default that arises as a result of its Term Loans at any discount to their par value within the incurrence of Indebtedness that is not permitted under this AgreementDiscount Range.
(iii2) The Borrower Auction Agent shall makereview all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (in consultation with the Company and subject to rounding requirements of the Auction Agent made in its reasonable discretion) the Applicable Discount and Term Loans to be prepaid at such Applicable Discount in accordance with this clause (B). The Company agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by the Auction Agent by the Discount Range Prepayment Response Date, or shall cause each applicable Restricted Subsidiary in the order from the Submitted Discount that is the largest discount to make a prepayment par to the Administrative AgentSubmitted Discount that is the smallest discount to par, for up to and including the benefit of Submitted Discount that is the applicable Lenders, of smallest discount to par within the Outstanding Amount of Discount Range (such Submitted Discount that is the Term Loans smallest discount to par within the Discount Range being referred to as the “Applicable Discount”) which yields a Discounted Loan Prepayment in an aggregate principal amount equal to fifty percent the lower of (50%I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Term Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Submitted Amount (subject to any required proration pursuant to the following clause (3)) at the Applicable Discount (each such Lender, a “Participating Lender”).
(3) If there is at least one Participating Lender, the Company will prepay the respective outstanding Term Loans of each Participating Lender in the aggregate principal amount and of the Net Cash Proceeds received after tranches specified in such Term Lender’s Discount Range Prepayment Offer at the Amendment Date from any Person other Applicable Discount; provided, that, if the Submitted Amount by all Participating Lenders offered at a discount to par greater than or equal to the Borrower or any Subsidiary Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the Borrower from each private or public issuance of Equity Interests principal amount of the Borrower relevant Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or any Restricted Subsidiary if at equal to the time of issuing such Equity Interests Applicable Discount (the Consolidated Leverage Ratio (calculated on a “Identified Participating Lenders”) shall be made pro forma basis rata among the Identified Participating Lenders in accordance with Sections 1.04(c) the Submitted Amount of each such Identified Participating Lender and the Auction Agent (d), as applicable) is greater than 3.50 in consultation with the Company and subject to 1.00. Each prepayment rounding requirements of the Term Loans required to be Auction Agent made pursuant to this Section 2.06(d)(iiiin its reasonable discretion) will be made calculate such proration (the “Discount Range Proration”). The Auction Agent shall promptly, and in any case within ten five (105) Business Days following the Discount Range Prepayment Response Date, notify (I) the Company of receipt the respective Term Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount and tranches of Term Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender of the aggregate principal amount and tranches of such Net Cash Proceeds Term Lender to be prepaid at the Applicable Discount on such date, and upon not less than (IV) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Company and Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Company shall be due and payable by the Company on the Discounted Prepayment Effective Date in accordance with clause (E) below (subject to clause (I) below).
(1) Subject to the proviso to clause (A) above, the Company may from time to time solicit Solicited Discounted Prepayment Offers by providing the Auction Agent with five (5) Business Days’ prior written notice in the form of a Solicited Discounted Prepayment Notice; provided, that, (I) any such solicitation shall be extended, at the sole discretion of the Company, to (x) each Term Lender and/or (y) each Term Lender with respect to Term Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate amount of the Term Loans (the “Solicited Discounted Prepayment Amount”) and the tranche or tranches of Term Loans the Company is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may be offered with respect to different tranches of Term Loans and, in such event, each such offer will be treated as separate offer pursuant to the terms of this Section), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by the Company shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a responding Term Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time on the third Business Day after the date of delivery of such notice to such Term Lenders (the Administrative Agent“Solicited Discounted Prepayment Response Date”). Each Term Lender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify both a discount to par (the “Offered Discount”) at which notice shall include a certificate such Term Lender is willing to allow prepayment of a Responsible Officer of its then outstanding Term Loans and the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds maximum aggregate principal amount and tranches of such issuanceTerm Loans (the “Offered Amount”) such Term Lender is willing to have prepaid at the Offered Discount. Notwithstanding Any Term Lender whose Solicited Discounted Prepayment Offer is not received by the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure have declined prepayment of any Default or Event of Default that arises as a result of the issuance of its Term Loans at any such Equity Interest that is not permitted under this Agreementdiscount.
(iv2) Within ten The Auction Agent shall promptly provide the Company with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date. The Company shall review all such Solicited Discounted Prepayment Offers and select the smallest of the Offered Discounts specified by the relevant responding Term Lenders in the Solicited Discounted Prepayment Offers that is acceptable to the Company (10the “Acceptable Discount”), if any. If the Company elects to accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the determination of the Acceptable Discount, but in no event later than by the third Business Day after the date of receipt by the Company from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this clause (2) (the “Acceptance Date”), the Company shall submit an Acceptance and Prepayment Notice to the Auction Agent setting forth the Acceptable Discount. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice from the Company by the Acceptance Date, the Company shall be deemed to have rejected all Solicited Discounted Prepayment Offers.
(3) Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by the Auction Agent by the Solicited Discounted Prepayment Response Date, within three (3) Business Days after financial statements have been delivered pursuant to Section 7.01(a) receipt of an Acceptance and Prepayment Notice (the related Compliance Certificate has been delivered pursuant to Section 7.02(b“Discounted Prepayment Determination Date”), the Borrower shall make a prepayment Auction Agent will determine (in consultation with the Company and subject to the Administrative Agent, for the benefit rounding requirements of the applicable Lenders, Auction Agent made in its reasonable discretion) the aggregate principal amount and the tranches of the Outstanding Amount of the Term Loans (the “Acceptable Prepayment Amount”) to be prepaid by the Company at the Acceptable Discount in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing accordance with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv2.05(a)(ii)(C). If the Company elects to accept any Acceptable Discount, then the term “Required ECF Company agrees to accept all Solicited Discounted Prepayment Percentage” means (A) eighty-five percent (85%)Offers received by the Auction Agent by the Solicited Discounted Prepayment Response Date, provided in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Term Lender that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent has submitted a Solicited Discounted Prepayment Offer with an Offered Discount that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio is greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 the Acceptable Discount shall be deemed to 1.00have irrevocably consented to prepayment of Term Loans equal to its Offered Amount (subject to any required prorate reduction pursuant to the following sentence) at the Acceptable Discount (each such Lender, and a “Qualifying Lender”). The Company will prepay outstanding Term Loans pursuant to this clause (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.each Qualifying Lende
Appears in 1 contract
Sources: Credit Agreement (Flex Ltd.)
Prepayments. (a) The Borrower may, upon notice to the Administrative AgentLender, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term any Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent Lender not later than 11:00 8:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative CurrenciesLoans, and (CB) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan Loans shall be accompanied by all accrued interest on the amount prepaidrepaid, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable3.05.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments Commitment then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.04(b) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments Commitment then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required . All prepayments under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i2.04(b) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant subject to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b)3.05, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than otherwise without premium or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00penalty.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility Individual Currency Loans made to such Borrower in whole or in part without premium or penalty; provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars(x) Dollars or (y) an Alternative Currency other than a Special Notice Currency, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Special Notice Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s Core Currency Applicable Percentage (in the case of Committed Loans) or ratable share (in the case of Individual Currency Loans) of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that if such notice is given in connection with a full or partial refinancing of the Commitments, such notice may condition the prepayment upon the effectiveness of such refinancing Indebtedness, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the date of such prepayment) if such condition is not satisfied; provided that the applicable Borrower shall pay any amounts required pursuant to Section 3.05. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.18, NYDOCS02/1167307 51 each such prepayment of Committed Loans shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Core Currency Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that (i) solely as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Commitments then in effect or that the aggregate Revolving Credit Exposure exceeds an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments or (ii) other than as a result of fluctuations in currency exchange rates, the Total Outstandings at such time exceed the Aggregate Commitments then in effecteffect or that the aggregate Revolving Credit Exposures exceed the Aggregate Commitments, then, in either case, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters the L/C Obligations in an aggregate amount at least equal to such excess; provided, however, that, subject to the provisions of CreditSection 2.17(a), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any time that (i) solely as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Loans denominated in Non-Core Currency at such time exceed an amount equal to 105% of the aggregate Individual Currency Commitments with respect to such currency then in effect or (ii) other than as a result of fluctuations in currency exchange rates, the Outstanding Amount of all Loans denominated in any Non-Core Currency at such time exceeds the aggregate Individual Currency Commitments with respect to such currency then in effect, then, in either case, within four Business Days after receipt of such notice, the Borrowers shall prepay Loans in such currency 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 Alternative such aggregate Individual Currency Sublimit Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Tiffany & Co)
Prepayments. (a) The Administrative Borrower mayon behalf of the Companies may on the last day of an Interest Period if the Loans to be repaid are Adjusted Libor Loans, or at any time and from time to time if the Loans to be repaid are Alternate Base Rate Loans, repay the then outstanding Loans, in whole or in part, without premium or penalty, except as provided in Section 3.08, upon written notice to the Administrative Agent, at any time Agent (or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility telephonic notice promptly confirmed in whole or in part without premium or penalty; provided that (iwriting) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) New York, New York time, three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on before the date of prepayment with respect to prepayments of Adjusted Libor Loans, or 11:00 a.m. New York, New York time one Business Day before the date of prepayment with respect to Alternate Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars . Each notice shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; irrevocable and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of repayment and whether such prepaymentrepayment is of Adjusted Libor Loans or Alternate Base Rate Loans or a combination thereof, and if a combination thereof, the credit facility amount of repayment allocable to which the prepayment is to be applied, and the Type(s) each. Upon receipt of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaidsuch notice, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will shall promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)thereof. If such notice is given by the Borrowergiven, the Borrower Companies shall make such prepayment repayment, and the payment amount specified in such notice shall be due and payable payable, on the date specified therein. Any Each partial prepayment pursuant to this Section 3.03 of a Eurocurrency (x) Alternate Base Rate Loan Loans shall be accompanied by all accrued interest on the in a principal amount prepaid, together with any additional amounts required pursuant to Section 4.05. Each such prepayment of $500,000 or whole multiples of $100,000 in excess thereof and (y) of Adjusted LIBOR Loans shall be applied to the Loans in a principal amount of the applicable Lenders $1,000,000 or whole multiples of $100,000 in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicableexcess thereof.
(b) If for any reason Commencing with the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effectcalendar year ending December 31, 2011 and annually thereafter, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize repay the L/C - BA Obligations in an aggregate amount equal to such excess; providedTerm Loan, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full on or before March 31st of the Revolving Loansimmediately following fiscal year, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%i) the product of (A) Excess Cash Flow times (B) 50% less (ii) any voluntary principal repayments of the Term Loan prepaid by the Companies during such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions)year; provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate the maximum amount of $25,000,000 at any time shall be required mandatory prepayments under this Section 2.06(d)(i3.03(b) if shall not exceed (x) $5,000,000, during the Borrower informs term of the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds Term Loan and (y) (A) $1,000,000, with respect to the acquisition of other assets or property consistent with the Core Business calendar year ending December 31, 2011, (including by way of merger or investmentB) within twelve months following the receipt of such Net Cash Proceeds$1,000,0000, with respect to the calendar year ending December 31, 2012, (C) $2,000,000, for the calendar year ending December 31, 2013 or (D) $1,000,000, with respect to the calendar year ending December 31, 2014 (as calculated, the “Required Amount”). Notwithstanding the foregoing, in the event that the amount of such Net Cash Proceeds unused after such twelve-month period being required cash available in the United States (the “Available Cash”) to be applied used to such prepayment on prepay the last day of such twelve-month period; provided further that, despite the application of Term Loan in accordance with this Section 2.06(d)(i3.03(b) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises is less than the Required Amount as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lendersdate of determination, of then (I) the Outstanding Amount of Companies shall repay the Term Loans Loan in an amount equal to Available Cash and (II) ▇▇▇▇▇ or one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(lCompanies shall (x) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include open a certificate of a Responsible Officer deposit or similar account with an office of the Borrower setting forth JPMorgan Chase Bank, N.A. located in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans Europe in an amount equal to the difference between the Required ECF Prepayment Percentage Amount and Available Cash, (defined belowy) maintain such amount in such account during the term of Excess Cash Flow for the fiscal year covered by such financial statements this Agreement and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment z) provide evidence to the Lenders that such account has been opened and is being maintained not less than once in each twelve (12) month period.
(c) Each prepayment of principal of a Loan pursuant to this Section 3.03 shall be accompanied by accrued interest to the date prepaid on the amount prepaid. Unless directed by the Administrative Agent, for Borrower pursuant to Section 3.03(a) partial prepayments of any Loan shall be applied first to outstanding Alternate Base Rate Loans and then to Adjusted Libor Loans having the benefit of the applicable Lenders, of the Outstanding Amount shortest remaining Interest Periods. Any partial prepayment of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level applied to the extent that the amount remaining installments thereof in inverse order of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00maturity.
Appears in 1 contract
Sources: Credit Agreement (Aceto Corp)
Prepayments. (a) The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Loans and Term Loan Facility Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share portion of such prepayment (including, in the event based on such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage in respect of such paymentthe relevant Facility). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Revolving Credit Loans or Term Loans, as the case may be, of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages in respect of the applicable Facility.
(b) If for any reason The Borrower may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, if less, the entire principal amount then in effectoutstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Total Revolving Loans denominated in Alternative Currencies Credit Outstandings at such time exceeds exceed an amount equal to 100% or, if such excess is a result of exchange rate fluctuations, 105% of the Alternative Currency Sublimit Aggregate Revolving Credit Commitments then in effect, then, immediately or, if such excess is as a result of exchange rate fluctuations, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Credit Loans (or, if necessary, or Swing Line Loans and/or the Borrower shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit Aggregate Revolving Credit Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above; provided, the Borrower shall make the following required prepaymentshowever, each such payment to be made that, subject to the Administrative Agent for the benefit provisions of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e2.16(a)(ii), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(c) shall be made within ten (10) Business Days unless after the prepayment in full of receipt the Revolving Credit Loans and Swing Line Loans the Total Revolving Credit Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice Collateral, request that additional Cash Collateral be provided in order to protect against the Administrative Agent, which notice shall include a certificate results of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementfurther exchange rate fluctuations.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Clarcor Inc.)
Prepayments. (a) The US Borrower may, upon notice delivery of a Notice of Loan Prepayment from the US Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penaltypenalty subject to Section 3.05; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice Notice of Loan Prepayment shall specify the date date, currency and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable US Lender of its receipt of each such notice, and of the amount of such US Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the US Borrower, the US Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.18, each such prepayment shall be applied to the Committed Loans of the applicable US Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The US Borrower may, upon notice from the Total Revolving Outstandings US Borrower to the Canadian Lender, at any time or from time to time voluntarily prepay Canadian Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Canadian Lender not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of CDOR Rate Loans, and (B) on the date of prepayment of Canadian Prime Rate Loans; and (ii) any prepayment of Canadian Loans shall be in a principal amount of C$100,000 or a whole multiple of C$100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Canadian Loans to be prepaid and, if CDOR Rate Loans are to be prepaid, the Interest Period(s) of such Loans. If such notice is given by the US Borrower, the applicable Canadian Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a CDOR Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
(c) At any time an Autoborrow Agreement is not in effect, the US Borrower may, upon delivery of a Notice of Loan Prepayment to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the US Borrower, the US Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If the Administrative Agent notifies the US Borrower at any time that the US Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the US Borrower shall immediately prepay Revolving Loans and/or the US Borrower shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that the US Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.06(d) unless after the prepayment in full of the Revolving Loans, Committed Loans and Swing Line Loans the US Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(ce) If the Administrative Agent notifies the US Borrower at any time that the Outstanding Amount of all Revolving Committed Loans and L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the US Borrower shall prepay Revolving Committed Loans (or, if necessary, and/or Cash Collateralize Letters of Credit) Credit denominated in Alternative Currencies 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice to the Administrative AgentLender, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term any Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent Lender not later than 11:00 a.m. 1:00 p.m. (A) three Business Days prior to any date of prepayment of Eurocurrency a Eurodollar Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative CurrenciesLoan, and (CB) on the date of prepayment of a Base Rate LoansLoan; (ii) any prepayment of Eurocurrency a Eurodollar Rate Loans denominated in Dollars Loan shall be in a principal amount of $3,000,000 250,000 or a whole multiple of $1,000,000 50,000 in excess thereof; and (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility Loan shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 50,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are Loan(s) to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable3.05.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments Commitment then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.04(b) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments Commitment then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (TRX Inc/Ga)
Prepayments. (a) The Borrower Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in the Alternative CurrenciesCurrency, and (C) on the date of prepayment of Base Rate Committed Loans and Cost of Funds Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in the Alternative Currencies Currency shall be in a minimum principal amount of $2,000,000 500,000 or a whole multiple of $500,000 100,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility or Cost of Funds Rate Loans shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the whether such prepayment is to be applieda prepayment of the WC Loans, the Revolver Loans or some combination thereof and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Committed Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an the Alternative Currency, each such Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share Applicable Percentage of such payment). If such notice is given by the BorrowerBorrowers, the Borrower Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.15, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason (i) (x) the Total Revolving WC Outstandings at any time exceed the Aggregate Revolving Credit WC Commitments then in effecteffect or (y) the Total WC Outstandings other than the maximum drawing amount of all issued and outstanding Products under Contract LCs exceed the Borrowing Base at such time, the Borrower Borrowers shall immediately prepay Revolving WC Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower Borrowers shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) 2.04 unless after the prepayment in full of the Revolving Loans, WC Loans and Swing Line Loans the Total Revolving Aggregate WC Outstandings exceed the Aggregate Revolving Credit WC Commitments then in effect; and (ii) the Total Revolver Outstandings at any time exceed the Aggregate Revolver Commitments then in effect the Borrowers shall immediately prepay Revolver Loans in an aggregate amount equal to such excess.
(c) The Borrowers may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrowers, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If the Administrative Agent notifies the Borrower Borrowers at any time that the Outstanding Amount of all Revolving Loans denominated in the Alternative Currencies Currency at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice to the Administrative AgentAgent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of the Alternative Currency Equivalent of $2,000,000 1,000,000 or a whole multiple of the Alternative Currency Equivalent of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that if such notice is given in connection with a refinancing of all Obligations (other than contingent indemnification obligations), such notice may be conditional on the effectiveness of the replacement credit agreement or other similar document and may be revoked by the Company if such condition is not satisfied. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) The Company may, upon notice to the applicable Swing Line Lender pursuant to delivery to such Swing Line Lender of a Notice of Loan Prepayment (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by such Swing Line Lender and the Administrative Agent not later than 1:00 p.m. (Eastern time, in the case of U.S. Swing Line Loans, or London time, in the case of Global Swing Line Loans) on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 (or, as applicable, the Alternative Currency Equivalent thereof). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower Borrowers shall immediately promptly prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, provided that the Borrower Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) hereto unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. Such Cash Collateral shall be subject to reduction in accordance with Section 2.16.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit Global Revolving Credit Facility then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit Global Revolving Credit Facility then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice to Lender ----------- specifying that it is paying any Prime Rate Loan, pay without penalty or premium the Administrative Agent, Prime Loan in whole at any time or in part from time to time, by paying the principal amount to be paid, provided that partial prepayments shall be in an aggregate amount of at least $2,000,000.00 or any larger multiple of $1,000,000.00. Borrower may, upon at least three (3) Eurodollar Business Day`s irrevocable prior written notice to Lender, prepay all at any time or any portion from time to time voluntarily prepay Loans under of the Revolving Credit Facility or either Term unpaid principal balance of any LIBOR Loan Facility in whole or in part without premium or penalty; prior to maturity provided that (i) contemporaneously with each such notice must be received by prepayment Borrower shall pay all accrued and unpaid interest on the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior portion of the LIBOR Loan being prepaid to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on including the date of prepayment of Base Rate Loansprepayment; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars partial prepayments shall be in a principal an aggregate amount of at least $3,000,000 2,000,000.00 or a whole any larger multiple of $1,000,000 in excess thereof1,000,000.00; (iii) in no event may Borrower make any prepayment of Eurocurrency Rate Revolving on any LIBOR Loan that results in the remaining LIBOR Loans denominated in Alternative Currencies shall be in with respect to which a minimum principal amount of given Interest Period applies being greater than $2,000,000 or a whole multiple of 0.00 but less than $500,000 in excess thereof; 1,000,000.00 and (iv) any if Borrower is making a prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof orLIBOR Loan, in each case, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of contemporaneously with such prepayment, Borrower shall pay Lender the credit facility to which the prepayment is to be applied, funding losses and the Type(s) of Loans to be prepaid andother amounts, if Eurocurrency Rate Loans are to be prepaidany, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to under Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable2.10.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected voluntary prepayments made by Borrower under subsection (aSection 2.08(a) above, until the Loan has been paid in full, Borrower shall make the following required prepaymentscovenants and agrees to pay to Lender within ten (10) days after receipt thereof, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent One Hundred Percent (100%) of the Net Cash Proceeds net cash proceeds up to the amount received after the Amendment Date by Borrower from each private or public Borrower's issuance of Indebtedness of the Borrower any capital stock, membership interest or other equity interest, from any other debt issuance or equity issuance (or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligationshybrid thereof, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at including the time issuance of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (dtrust-preferred securities), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice or any subordinated debt received subsequent to the Administrative Agent, which notice shall include a certificate date of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from ▇▇▇▇▇▇▇▇▇ to the Administrative AgentAgent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower▇▇▇▇▇▇▇▇▇, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.18, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason [reserved].
(c) ▇▇▇▇▇▇▇▇▇ may, upon notice to the Total Revolving Outstandings Swing Line Lender pursuant to delivery to the Swing Line Lender of a Notice of Loan Prepayment (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If the Administrative Agent notifies ▇▇▇▇▇▇▇▇▇ at any time that the Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, then, within two (2) Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay Revolving Loans and/or ▇▇▇▇▇▇▇▇▇ shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that the Borrower ▇▇▇▇▇▇▇▇▇ shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.06(c) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(ce) If the Administrative Agent notifies the Borrower ▇▇▇▇▇▇▇▇▇ at any time that the Outstanding Amount of all Revolving Loans and L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two (2) Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or Cash Collateralize Letters of Credit) Credit 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company or such Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 100,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 100,000 or a whole multiple of $500,000 100,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Company or the applicable Borrower, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.17, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason the Total Revolving Outstandings at At any time exceed that the Aggregate Revolving Credit Commitments then Autoborrow Agreement is not in effect, the Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall immediately prepay Revolving Loans and/or Cash Collateralize be in a minimum principal amount of $100,000. Each such notice shall specify the L/C - BA Obligations in an aggregate date and amount equal to of such excess; providedprepayment. If such notice is given by the Borrower, however, that the Borrower shall not make such prepayment and the payment amount specified in such notice shall be required to Cash Collateralize due and payable on the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) the L/C Obligations in an aggregate amount sufficient at least equal to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) aboveexcess; provided, the Borrower shall make the following required prepaymentshowever, each such payment to be made that, subject to the Administrative Agent for the benefit provisions of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e2.17(a), the Borrower Company shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(c) shall be made within ten (10) Business Days unless after the prepayment in full of receipt the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice Collateral, request that additional Cash Collateral be provided in order to protect against the Administrative Agent, which notice shall include a certificate results of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementexchange rate fluctuations.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Cdi Corp)
Prepayments. (a) The Borrower Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that that: (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in DollarsFixed Period Eurodollar Loans, (B) four one (1) Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) Day prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative CurrenciesEurodollar Loans, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Eurodollar Loans denominated (other than a prepayment in Dollars accordance with Section 2.04(b) or (c) below) shall be in a principal amount of $3,000,000 5,000,000 (or, in the case of an Alternate Currency Loan, the Alternate Currency Equivalent of such amount) or a whole multiple of $1,000,000 (or, in the case of an Alternate Currency Loan, the Alternate Currency Equivalent of such amount) in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility (other than a prepayment in accordance with Section 2.04(b) or (c) below) shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; and (iv) in connection with any prepayment of a Eurodollar Loan held by a Lender, the Borrower shall, simultaneously with such prepayment, reimburse such Lender for any breakage costs incurred in connection therewith. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) Currency Type and Interest Rate Type of Loans to be prepaid and, if Eurocurrency Rate Fixed Period Eurodollar Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the any Borrower, the such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Eurodollar Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares respective Applicable Percentages. All prepayments or Pro Rata Term B Shares, as applicablerepayments of Loans made pursuant to this Section 2.04(a) shall be made in the Approved Currency in which such Loan is denominated.
(b) If Prior to the Commitment Adjustment Date, if for any reason the Total Revolving Outstandings reason, at any time exceed the Aggregate Revolving Credit Commitments then in effecttime, there exists a Borrowing Base Deficiency greater than zero, then, the Borrower Borrowers shall, simultaneously with the release of any Specified Financial Asset, constituting Collateral, that is permitted to be released under this Agreement and the Security Agreement, either (i) prepay the Loans in an amount at least equal to the lesser of (x) the Net Value Amount of such Specified Financial Asset, and (y) the amount necessary to reduce the Borrowing Base Deficiency to zero immediately following the subject release, or (ii) deliver as Collateral one or more Eligible Specified Financial Assets with a combined Net Value Amount at least equal to the lesser of (x) the combined Net Value Amount of the Specified Financial Asset(s) that were the subject of the release, and (y) the amount necessary to reduce the Borrowing Base Deficiency to zero immediately following the subject release. Further, prior to the Commitment Adjustment Date, if for any reason, at any time, there exists a Borrowing Base Deficiency greater than zero, then the Borrowers shall, simultaneously with the release of any Specified Financial Asset, constituting Collateral, with a zero Net Value Amount that is permitted to be released under this Agreement and the Security Agreement, (i) deposit any Sales Proceeds received in connection with the sale of such Specified Financial Asset into a Pledged Account that constitutes Collateral and (ii) deliver as Collateral any Specified Financial Assets purchased directly or indirectly with such Sales Proceeds, until the Borrowing Base Deficiency is reduced to zero. Sales Proceeds received in any Approved Currency shall be applied to prepay Loans (to the extent required hereunder) denominated in that Approved Currency to the maximum extent possible and shall otherwise be converted to the Relevant Currency Equivalent to effect further prepayments in accordance with this Section 2.04(b).
(c) On and after the Commitment Adjustment Date, if for any reason, at any time, there exists a Borrowing Base Deficiency greater than zero, then the Borrowers shall immediately prepay Revolving the applicable Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effectBorrowing Base Deficiency.
(d) In addition to any required payments All prepayments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) 2.04 shall be made within ten (10) Business Days of receipt of in the Approved Currency in which such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that Loan is not permitted under this Agreementdenominated.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a1) The Each Borrower may, upon notice from the Company to the Administrative AgentAgent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Term Loans under the and Revolving Credit Facility or either Term Loan Facility Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment of the outstanding Term Loans pursuant to this Section 2.05(a) shall be applied to the Loans principal repayment installments thereof on a pro rata basis, and each prepayment of the applicable Loans shall be paid to the Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then respective Applicable Percentages in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full respect of each of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectrelevant Facilities.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (WEX Inc.)
Prepayments. (a) The Borrower may, upon notice to the Administrative AgentAgent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four (4) Business Days (or fivefive (5), in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 500,000.00 or a whole multiple of $1,000,000 100,000.00 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 500,000.00 or a whole multiple of $500,000 100,000.00 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000.00 or a whole multiple of $1,000,000 100,000.00 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for the Administrative Agent notifies the Borrower at any reason time that the Total Revolving Outstandings at any such time exceed the Aggregate Revolving Credit Commitments then in effect, then, within three Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(b) unless after the prepayment in full of the Revolving Loans, Committed Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two three Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Borrower Company shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, and/or the Company shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit Aggregate Commitments then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above; provided that, the Borrower shall make the following required prepayments, each such payment to be made subject to the Administrative Agent for the benefit provisions of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e2.03(g)(ii), the Borrower Company shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(c) shall be made within ten (10) Business Days unless after the prepayment in full of receipt the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice Collateral, request that additional Cash Collateral be provided in order to protect against the Administrative Agent, which notice shall include a certificate results of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementfurther exchange rate fluctuations.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 8:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason The Company may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Company at any time that the Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay Revolving Loans and/or the Company shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(cd) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
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Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penaltypenalty (except as set forth in the second proviso to this sentence or as otherwise agreed with any Lenders in respect of any increase in the Facilities pursuant to Section 2.14); provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars, and (B) four one Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) Day prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate LoansCommitted Loans (or, in either case, such later time and day as the Administrative Agent may agree); (ii) any prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; provided, further, that, in the event that after the Closing Date and on or prior to the six-month anniversary of the Closing Date, the Borrower (x) makes any prepayment of Term B Loans in connection with any Repricing Transaction (including pursuant to Section 2.05(e)), or (y) effects any amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each Term B Lender, (I) in the case of preceding clause (x), a prepayment premium in an amount equal to 1.00% of the principal amount so prepaid and (II) in the case of preceding clause (y), a payment equal to 1.00% of the aggregate principal amount of the Term B Loans outstanding immediately prior to such amendment that have been repriced. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid prepaid, whether the Committed Loans to be repaid are Revolving Credit Loans or Term B Loans and, if Eurocurrency Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the Lenders in respect of the applicable Lenders Facility in accordance with their Pro Rata Revolving Sharesrespective Applicable Percentages. All prepayments of Term Loans pursuant to this Section 2.05(a) (i) shall be applied ratably to each such Tranche of Loans (unless the Lenders of any Tranche of Term Loans incurred after the Closing Date have elected a lesser prepayment) and (ii) shall be applied to the scheduled installments of each such Tranche of Term Loans in the manner directed by the Borrower in the respective notice of prepayment (or, Pro Rata Term A Shares or Pro Rata Term B Sharesin the absence of such direction, as applicablein direct order of maturity).
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Swing Line Loans, and if no Swing Line Loans are (or remain) outstanding, Revolving Credit Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans, the Total Revolving Outstandings exceed the Aggregate aggregate Revolving Credit Commitments then in effect.
(cd) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Within ten Business Days after the receipt by the Borrower or any of such noticeits Restricted Subsidiaries of Net Cash Proceeds of any Disposition (other than Dispositions expressly permitted under Section 8.05(a), (b), (c), (d), (e) or (g)) or from any Extraordinary Loss from and after the Closing Date, the Borrower shall prepay Revolving repay Term Loans (or, if necessary, Cash Collateralize Letters of Credit) in an aggregate principal amount sufficient equal to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and (such prepayments to be applied as set forth in clause (h) below); provided, that if the Borrower shall make, certify at the time of such receipt that it or shall cause each applicable any of its Restricted Subsidiary Subsidiaries intends to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%i) of Reinvest such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 within twelve months of such receipt or (whether in one or ii) enter into a series of related transactions); provided that no mandatory prepayment on account of any legally binding commitment to Reinvest such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with no later than six months after the amount end of such twelve month period, the Borrower or such Restricted Subsidiary may use such Net Cash Proceeds for such purposes; provided further, to the extent that the Borrower or such Restricted Subsidiary shall not have (i) Reinvested 100% of such Net Cash Proceeds unused by not later than twelve months after the receipt thereof or (ii) entered into a legally binding commitment to Reinvest such twelve-Net Cash Proceeds within twelve months and Reinvested such Net Cash Proceeds no later than six months after the end of such twelve month period being period, the Borrower shall use any such remaining Net Cash Proceeds to repay Term Loans on such date; and provided, further, the Borrower shall not be required to be applied repay Term Loans pursuant to this clause (d) unless and until the aggregate amount of Net Cash Proceeds the Borrower is required to use to prepay Term Loans pursuant to this clause (d) is equal to or greater than $15,000,000 (and at such prepayment on time, the last day Borrower shall prepay the Term Loans using all such Net Cash Proceeds (and not just the portion in excess of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement$15,000,000)).
(iie) The Within five Business Days after the receipt by the Borrower shall make, or shall cause each applicable any of its Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit Subsidiaries of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after from the Amendment Date from each private incurrence, issuance or public issuance of Indebtedness of sale by the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) of Indebtedness (other than Permitted Subordinated Debt Indebtedness expressly permitted by Section 8.03, but including Indebtedness in respect of Refinancing Facilities and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (dRefinancing Equivalent Debt), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Borrower shall repay Term Loans required in an aggregate principal amount equal to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt 100% of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice such prepayments to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting be applied as set forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(iiclause (h) only to issuances of Indebtedness that are permitted under Sections 8.03(lbelow), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(ivf) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), beginning with the fiscal year ending December 31, 2021 (for the period from July 1, 2021 through and including December 31, 2021) and for each fiscal year thereafter, the Borrower shall make a prepayment to the Administrative Agent, for the benefit prepay an aggregate principal amount of the applicable Lenders, of the Outstanding Amount of the Term Loans (such prepayments to be applied as set forth in an amount clause (h) below) equal to the Required ECF Prepayment Percentage remainder of (defined belowA) 50% of Excess Cash Flow for the fiscal year (or, in the case of fiscal year 2021, such portion thereof) covered by such financial statements minus (B) other than to the extent made with the proceeds of long-term Indebtedness (other than revolving Indebtedness), (i) the aggregate principal amount of voluntary prepayments of Term Loans made during such fiscal year pursuant to Section 2.05(a), (ii) the aggregate amount of any reduction in the outstanding principal amount of Term Loans resulting from assignments to the Borrower made during such fiscal year in accordance with Section 11.06(g) (but, in the case of this clause (ii), limited to the amount of cash actually used to purchase principal of such Term Loans), (iii) the aggregate principal amount of any voluntary prepayments of Revolving Credit Loans made during such fiscal year pursuant to Section 2.05(a), but, in the case of this clause (iii), only to the extent accompanied by a like voluntary reduction in the Revolving Credit Commitments made during such fiscal year pursuant to Section 2.06(a) and measured as (iv) the aggregate principal amount of the end any voluntary prepayments of each Other Applicable Indebtedness made during such fiscal year (commencing with but, in the fiscal year case of this clause (iv), limited to the Borrower ending September 30, 2010amount of cash actually used to purchase principal of such Other Applicable Indebtedness if purchased at a discount); provided that for such percentage shall be reduced to 25% if the fiscal year Consolidated Secured Leverage Ratio as of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit last day of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but year was less than or equal to 3.00 to 1.003.00:1.00; and provided, and (Cfurther, that no mandatory prepayment under this Section 2.05(f) fifty-percent (50%), provided that such prepayment shall only be required to be made at if the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio as of the last day of the applicable fiscal year was less than or equal to 2.00 2.50:1.00.
(g) Notwithstanding anything to 1.00the contrary in Section 2.05(d) and/or Section 2.05(f) above, as applicable, (i) if at the time that any prepayment pursuant to Section 2.05(d) would be required, the Borrower is required to prepay or offer to prepay or repurchase any Incremental Equivalent Debt and/or any Refinancing Equivalent Debt that is secured by the Collateral on a pari passu basis and is pari passu in right of payment, in each case, with the Term Loans pursuant to the terms of the documentation governing such Indebtedness (such Incremental Equivalent Debt or Refinancing Equivalent Debt required to be so prepaid or offered to be so prepaid or repurchased, “Other Applicable Indebtedness”) with a portion of such prepayment, then the Borrower may apply such portion of such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with Section 2.05(h) below) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term B Loans that would have otherwise been required pursuant to Section 2.05(d) shall be reduced accordingly, (ii) if at the time that any prepayment pursuant to Section 2.05(f) would be required (the amount of any such prepayment, the “ECF Prepayment Amount”), the Borrower is required to prepay or offer to prepay or repurchase any Other Applicable Indebtedness with a portion of such ECF Prepayment Amount, then the Borrower may apply such portion of such ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with Section 2.05(h) below) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to Section 2.05(f) shall be reduced accordingly and (iii) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased or prepaid as described in preceding clauses (i) and/or (ii), the declined amount (other than any such amount declined by the Lenders pursuant to Section 2.05(j) below) shall promptly (and in any event within one Business Day after the date of such rejection) be applied to prepay the Term Loans in accordance with Section 2.05(h) below.
(h) All prepayments of Term Loans made pursuant to clauses (d), (e) and (f) of this Section 2.05 shall be applied ratably to each Tranche of outstanding Term Loans (unless the Lenders under any such Tranche of Term Loans incurred after the Closing Date have elected to be paid on a less than ratable basis).
(i) All prepayments of each Tranche of Term Loans shall be applied to the scheduled installments thereof in direct order of maturity (unless a different order of application has been agreed to in respect of any Tranche of Term Loans incurred after the Closing Date).
(j) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to Sections 2.05(d), (e) and (f) at least three Business Days prior to the date of such prepayment (or such shorter period as may be agreed to by the Administrative Agent in any particular instance). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each appropriate Lender of the contents of the Borrower’s prepayment notice and of such appropriate Lender’s Applicable Percentage of the prepayment. Each Term Lender may reject all or a portion of its Applicable Percentage of any mandatory prepayment (such declined amounts (other than to the extent such declined amounts are otherwise required to repay Other Applicable Indebtedness), the “Declined Proceeds”) of Term Loans required to be made pursuant to Sections 2.05(d) and (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. one Business Day after the date of such Term Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Term Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Term Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds remaining thereafter shall be retained by the Borrower.
(k) Notwithstanding any provision under this Section 2.05 to the contrary, (i) any amounts that would otherwise be required to be paid by the Borrower pursuant to Sections 2.05(d) and (f) shall not be required to be so prepaid to the extent of any such Excess Cash Flow that is generated by a Foreign Subsidiary or such Net Cash Proceeds are received by a Foreign Subsidiary, for so long as the repatriation to the United States of any such amounts would be prohibited under any requirement of law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could 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 (the Borrower agreeing to 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, unless the provisions of clause (iii) below are applicable, of any such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable re
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 250,000 or a whole multiple of $1,000,000 50,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 250,000 or a whole multiple of $500,000 50,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 250,000 or a whole multiple of $1,000,000 50,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the a Borrower, the such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied pro rata to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason the Total Revolving Outstandings Administrative Agent notifies the Borrowers at any time that the Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.03(g)(ii), the Borrowers shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.04(b) unless unless, after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(c) If the Administrative Agent notifies the Borrower Borrowers at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Kofax LTD)
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be a Notice of Loan Prepayment is received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars, and (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans or LIBOR Floating Rate Loans; (ii) any prepayment of Eurocurrency Eurodollar Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; (iii) any prepayment of LIBOR Floating Rate Loans shall be in a principal amount of $100,000 or a whole multiple of $10,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.05. Each such prepayment shall be applied to the Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.Section
Appears in 1 contract
Sources: Credit Agreement (Celadon Group Inc)
Prepayments. (a) The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; , (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; , and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) If for any reason The Borrower may, upon notice to the Total Revolving Outstandings Swing Line Lender (with a copy to the Administrative Agent), at any time exceed or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Aggregate Revolving Credit Commitments then Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in effecta minimum principal amount of $250,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize make such prepayment and the L/C - BA Obligations payment amount specified in an aggregate amount equal to such excess; provided, however, that notice shall be due and payable on the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effectdate specified therein.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies Total Outstandings at such time exceeds exceed an amount equal to 105% of the Alternative Currency Sublimit Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, and/or the Borrower shall Cash Collateralize Letters of Credit) the L/C Obligations 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 Alternative Currency Sublimit Aggregate Commitments then in effect.
(d) In addition ; provided, however, that, subject to any required payments the provisions of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) aboveSection 2.15, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall not be required under this Section 2.06(d)(i) if to Cash Collateralize the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made L/C Obligations pursuant to this Section 2.06(d)(ii2.05(c) shall be made within ten (10) Business Days unless after the prepayment in full of receipt the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice Collateral, request that additional Cash Collateral be provided in order to protect against the Administrative Agent, which notice shall include a certificate results of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreementfurther exchange rate fluctuations.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Tech Data Corp)
Prepayments. (a) The Borrower Borrowers may, upon notice to the Administrative AgentAgent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Revolving Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 10:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Revolving Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Revolving Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Revolving Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the a Borrower, the such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaidthereon, together with any additional amounts required pursuant to Section 4.053.5. Each Subject to Section 2.16, each such prepayment shall be applied to the Revolving Loans of the applicable Lenders in accordance with their respective Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable.
(b) DeVry may, upon notice to the Swing Line Lender pursuant to delivery to the Swing Line Lender of a Notice of Loan Prepayment (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 12:00 (noon) on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by DeVry, DeVry shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower DeVry shall immediately prepay Revolving (or cause to be prepaid) Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower DeVry shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.5(c) unless after the prepayment in full of the Revolving Loans, Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(cd) If the Administrative Agent notifies the Borrower Borrowers at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105103% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower DeVry shall prepay Revolving (or cause to be prepaid) Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penaltypenalty (except as set forth in the second proviso to this sentence or as otherwise agreed with any Lenders in respect of any increase in the Facilities pursuant to Section 2.14); provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Eurodollar RateSOFR Loans denominated in Dollars, and (B) four one Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) Day prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate LoansCommitted Loans (or, in either case, such later time and day as the Administrative Agent may agree); (ii) any prepayment of Eurocurrency Rate Eurodollar RateSOFR Loans denominated in Dollars shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 100,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; provided, further, that, in the event that after the Closing Date and on or prior to the six-month anniversary of the Closing Date, the Borrower (x) makes any prepayment of Term B Loans in connection with any Repricing Transaction (including pursuant to Section 2.05(e)), or (y) effects any amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each Term B Lender, (I) in the case of preceding clause (x), a prepayment premium in an amount equal to 1.00% of the principal amount so prepaid and (II) in the case of preceding clause (y), a payment equal to 1.00% of the aggregate principal amount of the Term B Loans outstanding immediately prior to such amendment that have been repriced. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid prepaid, whether the Committed Loans to be repaid are Revolving Credit Loans or Term B Loans and, if Eurocurrency Rate Eurodollar RateSOFR Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Eurodollar RateSOFR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the Lenders in respect of the applicable Lenders Facility in accordance with their Pro Rata Revolving Sharesrespective Applicable Percentages. All prepayments of Term Loans pursuant to this Section 2.05(a) (i) shall be applied ratably to each such Tranche of Loans (unless the Lenders of any Tranche of Term Loans incurred after the Closing Date have elected a lesser prepayment) and (ii) shall be applied to the scheduled installments of each such Tranche of Term Loans in the manner directed by the Borrower in the respective notice of prepayment (or, Pro Rata Term A Shares or Pro Rata Term B Sharesin the absence of such direction, as applicablein direct order of maturity).
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Swing Line Loans, and if no Swing Line Loans are (or remain) outstanding, Revolving Credit Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.05(c) unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans, the Total Revolving Outstandings exceed the Aggregate aggregate Revolving Credit Commitments then in effect.
(cd) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Within ten Business Days after the receipt by the Borrower or any of such noticeits Restricted Subsidiaries of Net Cash Proceeds of any Disposition (other than Dispositions expressly permitted under Section 8.05(a), (b), (c), (d), (e) or (g)) or from any Extraordinary Loss from and after the Closing Date, the Borrower shall prepay Revolving repay Term Loans (or, if necessary, Cash Collateralize Letters of Credit) in an aggregate principal amount sufficient equal to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and (such prepayments to be applied as set forth in clause (h) below); provided, that if the Borrower shall make, certify at the time of such receipt that it or shall cause each applicable any of its Restricted Subsidiary Subsidiaries intends to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%i) of Reinvest such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 within twelve months of such receipt or (whether in one or ii) enter into a series of related transactions); provided that no mandatory prepayment on account of any legally binding commitment to Reinvest such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with no later than six months after the amount end of such twelve month period, the Borrower or such Restricted Subsidiary may use such Net Cash Proceeds for such purposes; provided further, to the extent that the Borrower or such Restricted Subsidiary shall not have (i) Reinvested 100% of such Net Cash Proceeds unused by not later than twelve months after the receipt thereof or (ii) entered into a legally binding commitment to Reinvest such twelve-Net Cash Proceeds within twelve months and Reinvested such Net Cash Proceeds no later than six months after the end of such twelve month period being period, the Borrower shall use any such remaining Net Cash Proceeds to repay Term Loans on such date; and provided, further, the Borrower shall not be required to be applied repay Term Loans pursuant to this clause (d) unless and until the aggregate amount of Net Cash Proceeds the Borrower is required to use to prepay Term Loans pursuant to this clause (d) is equal to or greater than $15,000,000 (and at such prepayment on time, the last day Borrower shall prepay the Term Loans using all such Net Cash Proceeds (and not just the portion in excess of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement$15,000,000)).
(iie) The Within five Business Days after the receipt by the Borrower shall make, or shall cause each applicable any of its Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit Subsidiaries of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after from the Amendment Date from each private incurrence, issuance or public issuance of Indebtedness of sale by the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) of Indebtedness (other than Permitted Subordinated Debt Indebtedness expressly permitted by Section 8.03, but including Indebtedness in respect of Refinancing Facilities and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (dRefinancing Equivalent Debt), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Borrower shall repay Term Loans required in an aggregate principal amount equal to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt 100% of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice such prepayments to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting be applied as set forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(iiclause (h) only to issuances of Indebtedness that are permitted under Sections 8.03(lbelow), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(ivf) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), beginning with the fiscal year ending December 31, 2021 (for the period from July 1, 2021 through and including December 31, 2021) and for each fiscal year thereafter, the Borrower shall make a prepayment to the Administrative Agent, for the benefit prepay an aggregate principal amount of the applicable Lenders, of the Outstanding Amount of the Term Loans (such prepayments to be applied as set forth in an amount clause (h) below) equal to the Required ECF Prepayment Percentage remainder of (defined belowA) 50% of Excess Cash Flow for the fiscal year (or, in the case of fiscal year 2021, such portion thereof) covered by such financial statements minus (B) other than to the extent made with the proceeds of long-term Indebtedness (other than revolving Indebtedness), (i) the aggregate principal amount of voluntary prepayments of Term Loans made during such fiscal year pursuant to Section 2.05(a), (ii) the aggregate amount of any reduction in the outstanding principal amount of Term Loans resulting from assignments to the Borrower made during such fiscal year in accordance with Section 11.06(g) (but, in the case of this clause (ii), limited to the amount of cash actually used to purchase principal of such Term Loans), (iii) the aggregate principal amount of any voluntary prepayments of Revolving Credit Loans made during such fiscal year pursuant to Section 2.05(a), but, in the case of this clause (iii), only to the extent accompanied by a like voluntary reduction in the Revolving Credit Commitments made during such fiscal year pursuant to Section 2.06(a) and measured as (iv) the aggregate principal amount of the end any voluntary prepayments of each Other Applicable Indebtedness made during such fiscal year (commencing with but, in the fiscal year case of this clause (iv), limited to the Borrower ending September 30, 2010amount of cash actually used to purchase principal of such Other Applicable Indebtedness if purchased at a discount); provided that for such percentage shall be reduced to 25% if the fiscal year Consolidated Secured Leverage Ratio as of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit last day of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but year was less than or equal to 3.00 to 1.003.00:1.00; and provided, and (Cfurther, that no mandatory prepayment under this Section 2.05(f) fifty-percent (50%), provided that such prepayment shall only be required to be made at if the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio as of the last day of the applicable fiscal year was less than or equal to 2.00 2.50:1.00.
(g) Notwithstanding anything to 1.00the contrary in Section 2.05(d) and/or Section 2.05(f) above, as applicable, (i) if at the time that any prepayment pursuant to Section 2.05(d) would be required, the Borrower is required to prepay or offer to prepay or repurchase any Incremental Equivalent Debt and/or any Refinancing Equivalent Debt that is secured by the Collateral on a pari passu basis and is pari passu in right of payment, in each case, with the Term Loans pursuant to the terms of the documentation governing such Indebtedness (such Incremental Equivalent Debt or Refinancing Equivalent Debt required to be so prepaid or offered to be so prepaid or repurchased, “Other Applicable Indebtedness”) with a portion of such prepayment, then the Borrower may apply such portion of such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with Section 2.05(h) below) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term B Loans that would have otherwise been required pursuant to Section 2.05(d) shall be reduced accordingly, (ii) if at the time that any prepayment pursuant to Section 2.05(f) would be required (the amount of any such prepayment, the “ECF Prepayment Amount”), the Borrower is required to prepay or offer to prepay or repurchase any Other Applicable Indebtedness with a portion of such ECF Prepayment Amount, then the Borrower may apply such portion of such ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with Section 2.05(h) below) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to Section 2.05(f) shall be reduced accordingly and (iii) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased or prepaid as described in preceding clauses (i) and/or (ii), the declined amount (other than any such amount declined by the Lenders pursuant to Section 2.05(j) below) shall promptly (and in any event within one Business Day after the date of such rejection) be applied to prepay the Term Loans in accordance with Section 2.05(h) below.
(h) All prepayments of Term Loans made pursuant to clauses (d), (e) and (f) of this Section 2.05 shall be applied ratably to each Tranche of outstanding Term Loans (unless the Lenders under any such Tranche of Term Loans incurred after the Closing Date have elected to be paid on a less than ratable basis).
(i) All prepayments of each Tranche of Term Loans shall be applied to the scheduled installments thereof in direct order of maturity (unless a different order of application has been agreed to in respect of any Tranche of Term Loans incurred after the Closing Date).
(j) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to Sections 2.05(d), (e) and (f) at least three Business Days prior to the date of such prepayment (or such shorter period as may be agreed to by the Administrative Agent in any particular instance). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each appropriate Lender of the contents of the Borrower’s prepayment notice and of such appropriate Lender’s Applicable Percentage of the prepayment. Each Term Lender may reject all or a portion of its Applicable Percentage of any mandatory prepayment (such declined amounts (other than to the extent such declined amounts are otherwise required to repay Other Applicable Indebtedness), the “Declined Proceeds”) of Term Loans required to be made pursuant to Sections 2.05(d) and (f) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. one Business Day after the date of such Te▇▇ ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Term Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Term Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds remaining thereafter shall be retained by the Borrower.
(k) Notwithstanding any provision under this Section 2.05 to the contrary, (i) any amounts that would otherwise be required to be paid by the Borrower pursuant to Sections 2.05(d) and (f) shall not be required to be so prepaid to the extent of any such Excess Cash Flow that is generated by a Foreign Subsidiary or such Net Cash Proceeds are received by a Foreign Subsidiary, for so long as the repatriation to the United States of any such amounts would be prohibited under any requirement of law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could 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 (the Borrower agreeing to 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, unless the provisions of clause (iii) below are applicable, of any such affected Net Cash Proceeds or Excess Cash Flow is permitted under t
Appears in 1 contract
Prepayments. (a) The Borrower Borrowers may, upon notice from the Parent Borrower to the Administrative AgentAgent pursuant to delivery of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. 12:00 noon (A) three Business Days prior to any date of prepayment of Eurocurrency Rate RateTerm SOFR Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, CurrenciesCurrency Loans and (C) on the date of prepayment of Base Rate Loans or Daily SOFR Loans; (ii) any prepayment of Eurocurrency Rate RateTerm SOFR Loans denominated in Dollars shall be in a minimum principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies CurrenciesCurrency Loans shall be in a minimum principal amount of the Dollar Equivalent of $2,000,000 1,000,000 or a whole multiple of the Dollar Equivalent of $500,000 250,000 in excess thereof; and (iv) any prepayment of Base Rate Loans under any such credit facility or Daily SOFR Loans shall be in a minimum principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice Notice of Loan Prepayment shall specify the date and, amount and amount currency of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) and Class of Loans to be prepaid and, if Eurocurrency EurocurrencyTerm SOFR Loans or Alternative Currency Term Rate Loans are to be prepaid, the Interest Period(s) and currency of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Appropriate Lender of its receipt of each such noticeNotice of Loan Prepayment, and of the amount of such Appropriate Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the Parent Borrower, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that a Notice of Loan Prepayment delivered by the Parent Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or the closing of another transaction, the proceeds of which will be used to prepay any outstanding Obligations, in which case such prepayment may be conditional upon the effectiveness of such other credit facilities or the closing of such other transaction. Any prepayment of a Eurocurrency EurocurrencyTerm SOFR Loan or Alternative Currency Term Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.16, each such prepayment shall be applied to the Loans of the applicable Appropriate Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason the Total Revolving Outstandings at any time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, the Borrower Borrowers shall immediately prepay Revolving Loans and/or the Parent Borrower shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce the Total Revolving Outstandings as of such excessdate of payment to an amount not to exceed 100% of the Aggregate Revolving Commitments then in effect; provided, however, that that, subject to Section 2.15(a), the Parent Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.04(b) unless after the prepayment in full of the Revolving Loans, Loans the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral in an amount not to exceed 105% of the outstanding L/C Obligations be provided in order to protect against the results of exchange rate fluctuations.
(c) If for any reason the Administrative Agent notifies the Borrower at any time that the aggregate Outstanding Amount of all Revolving Loans and L/C Obligations denominated in Alternative Currencies at such any time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Committed Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Committed Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Committed Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Committed Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Committed Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Committed Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) No Bid Loan may be prepaid without the prior consent of the applicable Bid Loan Lender.
(c) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $1,000,000. Each such notice shall specify the date and amount of such prepayment. If for such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(d) If the Administrative Agent notifies the Company at any reason time that the Total Revolving Outstandings at any such time exceed the Aggregate Revolving Credit Commitments then in effecteffect in an amount equal to or in excess of $2,000,000, then, within three Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay Revolving Loans and/or the Company shall Cash Collateralize the L/C - BA Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.04(g)(ii), the Company shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b2.06(d) unless after the prepayment in full of the Revolving Committed Loans and Swing Line Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(ce) If the Administrative Agent notifies the Borrower Company at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effecteffect in an amount equal to or in excess of $2,000,000, then, within two three Business Days after receipt of such notice, the Borrower Borrowers shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
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Sources: Credit Agreement (Verisign Inc/Ca)
Prepayments. (a) The Each Borrower may, upon notice from the Company to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 5,000,000 or a whole multiple of $500,000 1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerCompany, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract
Prepayments. (ai) The Borrower Borrowers may, upon notice from C▇▇▇▇▇▇▇▇ to the Administrative AgentAgent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Committed Loans under the Revolving Credit Facility or either Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $3,000,000 1,000,000 or a whole multiple of $1,000,000 500,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative Currencies shall be in a minimum principal amount of $2,000,000 1,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans under any such credit facility shall be in a principal amount of $3,000,000 500,000 or a whole multiple of $1,000,000 100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the credit facility to which the prepayment is to be applied, and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Prepayments of the Term Loans shall be applied pro rata to remaining installments of the scheduled amortization of the applicable Term Loan. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable share Applicable Percentage of such prepayment (including, in the event such prepayment is of a Revolving Loan denominated in an Alternative Currency, each Alternative Currency Funding Lender’s Alternative Currency Funding Pro Rata Share of such payment)prepayment. If such notice is given by the BorrowerC▇▇▇▇▇▇▇▇, the Borrower Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 4.053.05. Each Subject to Section 2.18, each such prepayment shall be applied to the Committed Loans of the applicable Lenders in accordance with their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B Shares, as applicablerespective Applicable Percentages.
(b) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C - BA Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C - BA Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(c) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize Letters of Credit) 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 Alternative Currency Sublimit then in effect.
(d) In addition to any required payments of principal of the Term Loans and any optional payments of principal of the Term Loans and the Revolving Loans effected under subsection (a) above, the Borrower shall make the following required prepayments, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders, within the time period specified below:
(i) No later than 30 calendar days following the receipt of any Net Cash Proceeds from any Disposition permitted by Section 8.05(e), the Borrower shall deliver to the Administrative Agent a calculation of the amount of such Net Cash Proceeds and the Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of such Net Cash Proceeds received after the Amendment Date that exceed $25,000,000 (whether in one or a series of related transactions); provided that no mandatory prepayment on account of any such Net Cash Proceeds up to an aggregate amount of $25,000,000 at any time shall be required under this Section 2.06(d)(i) if the Borrower informs the Administrative Agent no later than 30 days following the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s good faith intention to apply such Net Cash Proceeds to the acquisition of other assets or property consistent with the Core Business (including by way of merger or investment) within twelve months following the receipt of such Net Cash Proceeds, with the amount of such Net Cash Proceeds unused after such twelve-month period being required to be applied to such prepayment on the last day of such twelve-month period; provided further that, despite the application of this Section 2.06(d)(i) only to Dispositions that are permitted under Section 8.05(e) of this Agreement, nothing in this Section 2.06(d)(i) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of any Disposition that is not permitted under this Agreement.
(ii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make, a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received after the Amendment Date from each private or public issuance of Indebtedness of the Borrower or any Restricted Subsidiary permitted by Sections 8.03(l) and 8.03(o) (other than Permitted Subordinated Debt and Second Lien Obligations, as applicable, that are refinanced, refunded, renewed or extended as permitted under this Agreement) and 8.03(n) if at the time of issuing such Indebtedness the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(ii) shall be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance; provided that despite the application of this Section 2.06(d)(ii) only to issuances of Indebtedness that are permitted under Sections 8.03(l), (n) or (o), nothing in this Section 2.06(d)(ii) shall be deemed to permit any Indebtedness not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the incurrence of Indebtedness that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Restricted Subsidiary to make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of the Net Cash Proceeds received after the Amendment Date from any Person other than the Borrower or any Subsidiary of the Borrower from each private or public issuance of Equity Interests of the Borrower or any Restricted Subsidiary if at the time of issuing such Equity Interests the Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with Sections 1.04(c) and (d), as applicable) is greater than 3.50 to 1.00. Each prepayment of the Term Loans required to be made pursuant to this Section 2.06(d)(iii) will be made within ten (10) Business Days of receipt of such Net Cash Proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance. Notwithstanding the application of this Section 2.06(d)(iii) to any issuance of Equity Interests, nothing in this Section 2.06(d)(iii) shall be deemed to permit any issuance of Equity Interests of the Borrower or any Restricted Subsidiary not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of the issuance of any such Equity Interest that is not permitted under this Agreement.
(iv) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 7.01(a) and the related Compliance Certificate has been delivered pursuant to Section 7.02(b), the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to the Required ECF Prepayment Percentage (defined below) of Excess Cash Flow for the fiscal year covered by such financial statements and measured as of the end of each such fiscal year (commencing with the fiscal year of the Borrower ending September 30, 2010); provided that for the fiscal year of the Borrower ending September 30, 2009, the Borrower shall make a prepayment to the Administrative Agent, for the benefit of the applicable Lenders, of the Outstanding Amount of the Term Loans in an amount equal to fifty percent (50%) of Excess Cash Flow that exceeds $5,000,000 for such fiscal year. For purposes of this Section 2.06(d)(iv), the term “Required ECF Prepayment Percentage” means (A) eighty-five percent (85%), provided that such prepayment shall only be required to be made at the eighty-five percent (85%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the eighty-five percent (85%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 3.00 to 1.00, (B) seventy-five percent (75%), provided that such prepayment shall only be required to be made at the seventy-five percent (75%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the seventy-five percent (75%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio greater than to 2.00 to 1.00 but less than or equal to 3.00 to 1.00, and (C) fifty-percent (50%), provided that such prepayment shall only be required to be made at the fifty-percent (50%) level to the extent that the amount of Consolidated Senior Secured First Lien Indebtedness, as reduced by giving effect to such prepayment at the fifty-percent (50%) level, would result in a Consolidated Senior Secured First Lien Leverage Ratio less than or equal to 2.00 to 1.00.
Appears in 1 contract