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.
Mandatory Repayments (a) On any day on which the sum of (I) the aggregate outstanding principal amount of all Revolving Loans (after giving effect to all other repayments thereof on such date), (II) the aggregate outstanding principal amount of all Swingline Loans (after giving effect to all other repayments thereof on such date) and (III) the aggregate amount of all Letter of Credit Outstandings, exceeds the Total Revolving Loan Commitment at such time, the Borrower shall prepay on such day the principal of Swingline Loans and, after all Swingline Loans have been repaid in full or if no Swingline Loans are outstanding, Revolving Loans, in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and Revolving Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment at such time, the Borrower shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Permitted Investments equal to the amount of such excess (up to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash and/or Permitted Investments to be held as security for all Obligations of the Borrower to the Issuing Lenders and the Lenders hereunder in a cash collateral account to be established by the Administrative Agent.
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, (x) on each Quarterly Payment Date, beginning with the Quarterly Payment Date occurring in September, 2010, the Borrower shall be required to repay that principal amount of Term Loans, to the extent then outstanding, as is equal to ¼ of 1% of the aggregate initial principal amounts of all Term Loans theretofore borrowed by the Borrower pursuant to Section 2.01 of this Agreement (without double counting any B-2 Term Loans converted into B-1 Term Loans), and (y) on the Term Loan Maturity Date (with the Term Loan Maturity Date and each Quarterly Payment Date described in preceding clause (x), each a “Scheduled Term Loan Repayment Date”), the Borrower shall be required to repay in full the entire principal amount of Term Loans then outstanding (with each such repayment pursuant to this Section 5.02(b), as the same may be reduced as provided in Section 5.01(a), 5.01(b) or 5.02(h), a “Scheduled Term Loan Repayment”). All repayments pursuant to this clause (b) shall be applied to repay outstanding B-1 Term Loans, as all theretofore outstanding B-2 Term Loans shall have been required to be converted into B-1 Term Loans in accordance with Section 2.01 hereof prior to the initial Scheduled Term Loan Repayment Date.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date on or after the Initial Borrowing Date upon which Holdings or any of its Subsidiaries receives any cash proceeds from any issuance or incurrence by Holdings or any of its Subsidiaries of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 11.01, except that Indebtedness incurred pursuant to clause (B) of Section 11.01(i) shall not be excluded pursuant to this parenthetical), an amount equal to 100% of the Net Cash Proceeds of the respective incurrence of Indebtedness shall be applied on such date in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date on or after the Effective Date upon which Holdings or any of its Subsidiaries receives any cash proceeds from any Asset Sale or Recovery Event, an amount equal to 100% of the Net Cash Proceeds therefrom shall be applied on such date in accordance with the requirements of Sections 5.02(g) and (h); provided, however, that such Net Cash Proceeds shall not be required to be so applied on such date so long as no Event of Default then exists and such Net Cash Proceeds shall be used to purchase assets used or to be used in the businesses permitted pursuant to Section 11.03(b) within 540 days following the date of such Asset Sale or Recovery Event, and provided further, that if all or any portion of such Net Cash Proceeds not required to be so applied as provided above in this Section 5.02(d) are not so reinvested within such 540-day period (or such earlier date, if any, as Holdings or the relevant Subsidiary determines not to reinvest the Net Cash Proceeds from such Asset Sale or Recovery Event as set forth above), such remaining portion shall be applied on the last day of such period (or such earlier date, as the case may be) as provided above in this Section 5.02(d) without regard to the preceding proviso.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Payment Date, an amount equal to 50% of the Excess Cash Flow for the related Excess Cash Payment Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, so long as no Event of Default then exists and if the Total Leverage Ratio as of the last day of the respective Excess Cash Payment Period is less than or equal to 1.25:1.00 (but greater than 0.75:1.00), the foregoing percentage shall be reduced to 25% for the respective Excess Cash Payment Period; provided further that so long as no Event of Default then exists and is continuing and if the Total Leverage Ratio as of the last day of the respective Excess Cash Payment Period is less than or equal to 0.75:1.00, the foregoing percentage shall be reduced to 0% for the respective Excess Cash Payment Period.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date on or after the Effective Date and on or prior to the Merger Closing Date upon which Holdings receives any cash proceeds from the sale or issuance of its Equity Interests, an amount equal to 100% of the Net Cash Proceeds of such sale or issuance of Equity Interests shall be applied on such date as a mandatory repayment and/or commitment reduction in accordance with the requirements of Sections 5.02(g) and (h).
(g) Each amount required to be applied pursuant to Sections 5.02(c), (d), (e) and (f) in accordance with this Section 5.02(g) shall be applied (i) first, if on or prior to the Merger Closing Date, to reduce (on a dollar for dollar basis) the Total B-2 Term Loan Commitment, (ii) second, if on or prior to the Merger Closing Date, and if the Total B-2 Term Loan Commitment has been terminated, to reduce (on a dollar for dollar basis) the Total B-1 Term Loan Commitment, (iii) third, to the extent in excess of the amounts required to be applied pursuant to the preceding clauses (i) and (ii), to repay the outstanding principal amount of Term Loans and (iv) fourth, to the extent in excess of the amounts required to be applied pursuant to preceding clauses (i) through (iii), inclusive, to repay the outstanding principal amount of Revolving Loans and/or Swingline Loans (to the extent then outstanding). The amount of each principal repayment of outstanding principal of Term Loans made as required by Sections 5.02(c), (d), (e) and (f) shall be applied (i) pro rata to the then outstanding Term Loans of the Lenders; provided that any payments required pursuant to Section 5.02(c) and (f) prior to the B-1 Conversion Date shall be required to be applied (x) first, to then outstanding principal of B-2 Term Loans until they are paid in full and (y) second, to the extent in excess thereof, to repay then outstanding principal of B-1 Term Loans, and (ii) to reduce the then remaining Scheduled Term Loan Repayments on a pro rata basis (based upon the then remaining principal amounts of the Scheduled Term Loan Repayments after giving effect to all prior reductions thereto). Notwithstanding the foregoing priorities, with respect to not more than $200,000,000 aggregate principal amount of Permitted Refinancing Indebtedness incurred pursuant to Section 11.01(i)(B), the Lead Arrangers may (in their sole discretion) at the request of the Borrower allow the utilization of same as contemplated by clause (y) of the proviso to Section 11.01(i) before requiring that such amounts be applied as otherwise required pursuant to the two preceding sentences of this Section 5.02(g).
(h) All repayments of the Loans of a given Tranche required by this Section 5.02 shall be made on a pro rata basis to the Lenders of such Tranche of Loans (based upon their respective relative outstanding principal amounts of such Loans). With respect to each repayment of Loans required by this Section 5.02, the Borrower may designate the Types of Loans of the respective Tranche which are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings of the respective Tranche pursuant to which such Eurodollar Loans were made, provided that: (i) repayments of Eurodollar Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all Eurodollar Loans of the respective Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans of the respective Tranche have been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, such Borrowing shall be automatically converted into a Borrowing of Base Rate Loans on the last day of the Interest Period then applicable thereto unless otherwise repaid at or prior to the end of the Interest Period then in effect; and (iii) each repayment of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, (i) all then outstanding Loans of a respective Tranche (other than Swingline Loans) shall be repaid in full on the respective Maturity Date for such Tranche of Loans, (ii) outstanding Swingline Loans shall be repaid in full on the earlier of (x) the tenth Business Day following the date of the incurrence of such Swingline Loans (unless otherwise agreed by the Swingline Lender) and (y) the Swingline Expiry Date and (iii) all then outstanding Loans shall be repaid in full on the date on which the repayment of the Loans is accelerated pursuant to Section 12.
(j) If any RL Lender becomes a Defaulting Lender at any time that any Letter of Credit issued by any Issuing Lender is outstanding, the Borrower shall enter into the applicable Letter of Credit Back-Stop Arrangements with such Issuing Lender no later than 10 Business Days after the date such RL Lender becomes a Defaulting Lender.