Application of Mandatory Prepayments (a) Subject to paragraph (b), prepayments made pursuant to this Clause 10 (Mandatory Prepayment) or Clause 25.21 (Notes Purchases) shall be applied in the following order:
(i) first, in cancellation of the Available Commitments (and the Available Commitment of the Lenders will be cancelled rateably) (such cancellation shall be deemed to be a prepayment even though no cash is paid by the Borrower to the Lenders);
(ii) secondly, in permanent prepayment and cancellation of Utilisations and cancellation of Commitments; and
(iii) thirdly, in repayment and cancellation of the Ancillary Outstandings and Ancillary Commitments.
(b) Unless the Company makes an election under paragraph (c) below, the Borrowers shall make prepayments and cancellations under this Clause 10 or Clause 25.21 (Notes Purchases) at the following times:
(i) in the case of Net Cash Proceeds (if any) required to be applied pursuant to Clause 10.2 (Disposals), within 364 days following receipt of those Net Cash Proceeds; and
(ii) in the case of amounts required to be prepaid pursuant to Clause 25.21 (Notes Purchases), on or prior to the date of completion of the Notes Purchase in relation to which such prepayment is required.
(c) Subject to paragraph (d) below, the Company may elect, by no less than two (2) Business Days’ notice in writing to the Agent (or such shorter period as the Majority Lenders may agree), that any prepayment of a Utilisation due under Clause 25.21 (Notes Purchases), to the extent it will be applied under any sub-clause other than sub-clause “first” of Clause 10.4(a) (Application of mandatory prepayments), may be made on the last day of the Interest Period relating to that Utilisation. If the Company makes that election then an amount of the Utilisation equal to the amount of the relevant prepayment shall be due and payable on the last day of its Interest Period.
(d) If the Company has made an election under paragraph (c) above but an Event of Default has occurred and is continuing, that election shall no longer apply and a proportion of the Utilisation in respect of which the election was made equal to the amount of the relevant prepayment shall be immediately due and payable (unless the Majority Lenders otherwise agree).
(e) Subject to paragraphs (f) to (h) below, if monies are required to be applied in prepayment or repayment of Utilisations under Clause 10 (Mandatory Prepayment) but, in order to be so applied, need to be upstreamed or otherwise transferred from one member of the Group to another member of the Group to effect that payment, no amounts shall be payable under that Clause:
(i) to the extent that the upstreaming or transfer of funds to make the relevant payment:
(A) is prohibited by the local law of the jurisdiction from which the upstreaming (or other transfer) is to be made or the local law of the jurisdiction to which the upstreaming (or other transfer) should be made (in each case including, without limitation, any corporate benefit, capital maintenance, general legal or statutory limitations, financial assistance, fraudulent preference or laws or regulations (or analogous restrictions));
(B) would result in a risk to the officers or directors of the relevant member of the Group of contravention of their fiduciary or officers’ or directors’ duties and/or of civil or criminal liability; or
(ii) in circumstances where the Taxes or other costs to the Group of the upstreaming (or other transfer) of funds to make the relevant payment is equal to or exceeds five per cent of the amount to be upstreamed or transferred.
(f) Each Obligor shall (and the Company shall procure that each relevant member of the Group will) use all commercially reasonable endeavours to overcome any restrictions (including without limitation by seeking to upstream or otherwise transfer the relevant monies to one or more other members of the Group) and/or minimise any Taxes or other costs of any upstreaming (or other transfer). If at any time those restrictions are removed or (as the case may be) those Taxes or costs are reduced, the Company must procure that an amount equal to the relevant proceeds will be applied in prepayment of the Facility in accordance with this Agreement at the end of the next Interest Period.
(g) If cash required for making such prepayment is available to any other member of the Restricted Group and such cash is not projected to be required by any member of the Restricted Group during the next 12 Months (“Free Cash”) and sub-paragraphs (e)(i) and (ii) above would not apply to any prepayment made using Free Cash, any such other members of the Restricted Group shall (to the extent it is able to do so without breaching any legal restriction applicable to it (including, without limitation, any financial assistance prohibition), having used all commercially reasonable endeavours to overcome any such restriction), apply the amount of Free Cash towards any applicable prepayment (or, as applicable, towards upstreaming (or otherwise transferring) such Free Cash to a Borrower to enable it to make that prepayment).
(h) The obligation to make a mandatory prepayment under Clause 10.1 (Exit) shall not be subject to any limitation set out under paragraph (e) above.
Waivable Mandatory Prepayment Anything contained herein to the contrary notwithstanding, so long as any Tranche A Term Loans are outstanding, in the event Borrower is required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”) of the Tranche B Term Loans, not less than five Business Days prior to the date (the “Required Prepayment Date”) on which Borrower is required to make such Waivable Mandatory Prepayment, Borrower shall notify Administrative Agent of the amount of such prepayment, and Administrative Agent will promptly thereafter notify each Lender holding an outstanding Tranche B Term Loan of the amount of such Lender’s Pro Rata Share of such Waivable Mandatory Prepayment and such Lender’s option to refuse such amount. Each such Lender may exercise such option by giving written notice to Borrower and Administrative Agent of its election to do so on or before the third Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify Borrower and Administrative Agent of its election to exercise such option on or before the third Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option). On the Required Prepayment Date, Borrower shall pay to Administrative Agent the amount of the Waivable Mandatory Prepayment, which amount shall be applied (i) in an amount equal to that portion of the Waivable Mandatory Prepayment payable to those Lenders that have elected not to exercise such option, to prepay the Tranche B Term Loans of such Lenders (which prepayment shall be applied to the scheduled Installments of principal of the Tranche B Term Loans in accordance with Section 2.15(b)), and (ii) in an amount equal to that portion of the Waivable Mandatory Prepayment otherwise payable to those Lenders that have elected to exercise such option, to prepay the Tranche A Term Loans (which prepayment shall be further applied to the scheduled installments of principal of the Tranche A Term Loans in accordance with Section 2.15(b)), with any excess after such prepayment of the Tranche A Term Loans being further applied in accordance with clauses second through sixth of Section 2.15(b).
Mandatory Prepayment Upon an Acceleration If the Term Loan Advances are accelerated by Bank following the occurrence and during the continuance of an Event of Default, Borrower shall immediately pay to Bank an amount equal to the sum of (i) all outstanding principal plus accrued and unpaid interest with respect to the Term Loan Advances, (ii) the Prepayment Fee, (iii) the Final Payment, and (iv) all other sums, if any, that shall have become due and payable with respect to the Term Loan Advances, including interest at the Default Rate with respect to any past due amounts.
Application of Mandatory Prepayments by Type of Loans Except as provided in subsection 2.4D, any amount required to be applied as a mandatory prepayment of the Loans and/or a reduction of the Revolving Loan Commitment Amount pursuant to subsections 2.4B(iii)(a)-(f) shall be applied first to prepay the Term Loans to the full extent thereof, second, to the extent of any remaining portion of such amount, to prepay the Swing Line Loans to the full extent thereof and to permanently reduce the Revolving Loan Commitment Amount by the amount of such prepayment, third, to the extent of any remaining portion of such amount, to prepay the Revolving Loans to the full extent thereof and to further permanently reduce the Revolving Loan Commitment Amount by the amount of such prepayment, fourth, to the extent of any remaining portion of such amount, to further permanently reduce the Revolving Loan Commitment Amount to the full extent thereof and fifth, to the extent of any remaining portion of such amount, to cash collateralize any outstanding Letters of Credit. Any mandatory reduction of the Revolving Loan Commitment Amount pursuant to this subsection 2.4B shall be in proportion to each Revolving Lender’s Pro Rata Share.
Mandatory Prepayments Section 2.20 of the Loan Agreement shall be amended by amending Section 2.20(a) and adding a new Section 2.20(d), each as follows:
(1) Section 2.20(a) shall be amended and restated in its entirety as follows:
(a) Subject to Section 7.1 hereof, when any Borrower sells or otherwise disposes of any Collateral other than Inventory in the Ordinary Course of Business, Borrowers shall repay the Advances in an amount equal to the net proceeds of such sale (i.e., gross proceeds less the reasonable direct costs of such sales or other dispositions), such repayments to be made promptly but in no event more than three (3) Business Days following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied to the outstanding Advances (x) first, to the outstanding principal installments of the Term Loans in the inverse order of the maturities thereof, (y) second, to the outstanding principal installments of the Equipment Loans in the inverse order of the maturities thereof, and (z) third, to the remaining Advances (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided however that if no Default or Event of Default has occurred and is continuing, such repayments shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last) in such order as Agent may determine, subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(2) a new Section 2.20(d) shall be added as follows: