Casualty Events. (a) If a Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project. (b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
Appears in 8 contracts
Samples: Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc)
Casualty Events. (a) If a any Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the applicable Borrower may, shall (a) promptly upon discovery or receipt of notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior thereof provide written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, notice with respect to any Casualty EventEvent over $5,000,000 to the Disbursement Agent and the Agent, and (b) diligently pursue (or cause the applicable Loan Party to pursue) on a commercially reasonable basis all its rights to compensation against all relevant insurers, reinsurers, Project Document counterparties and/or Governmental Authorities, as applicable, in respect of such Casualty Event to the extent that such Borrower (or any other Loan Party) has a reasonable basis for a claim for compensation or reimbursement, including, without limitation, under any insurance policy required to be maintained hereunder or under the Collateral Agreement. All amounts and proceeds (including instruments providing for future payment) in respect of any Casualty Event with respect to such Project, including the proceeds of any insurance policy required to be maintained by any Loan Party hereunder or under the Collateral Agreement, net of costs and expenses in obtaining such amounts and taxes relating thereto (collectively, the Administrative “Loss Proceeds”) in respect of any such Casualty Event received prior to the applicable Substantial Completion Date shall be applied as provided in this Section 6.11. The Borrower shall request that the insurers, reinsurers, counterparties, Governmental Authorities or other payors of such Loss Proceeds pay all such Loss Proceeds directly to the Disbursement Agent for deposit in the Loan Proceeds Account (in the percentage of the Loan Proceeds Allocation) and for deposit in the Company Account (in the percentage of the Company Allocation). If any such Loss Proceeds are paid directly to the Borrower, any Subsidiary of the Borrower, or the Agent, (i) such Loss Proceeds shall be received in its sole discretiontrust for the Disbursement Agent, may settle and adjust any claim without the consent (ii) such Loss Proceeds shall be segregated from other funds of the Borrower and agree with the insurer(s) on the amount to be paid on the lossor such other Person, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lendersiii) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party such other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty EventPerson shall pay (or, if applicable, the Borrower shall immediately endorse, and cause all such third parties of its Subsidiaries to endorse, pay) such check payable Loss Proceeds over to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Disbursement Agent in the settlement, adjustment and collection of same form as received (with any necessary endorsement) for deposit in the Insurance applicable Accounts as set forth above. Any such Loss Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand applied (1) to the extent not already deducted by required under the Administrative Agent from such Insurance Proceeds in determining Net ProceedsCredit Agreement, to prepay the Loans, or (2) otherwise, to pay Project Costs pursuant to the requirements of Section 4.
Appears in 3 contracts
Samples: Master Disbursement Agreement, Master Disbursement Agreement (CAESARS ENTERTAINMENT Corp), Credit Agreement (CAESARS ENTERTAINMENT Corp)
Casualty Events. (a) If a Upon the date 270 days following the receipt by the Borrower of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Borrower or any of its Subsidiaries (other than any Non-Controlled Joint Venture Entity) (or upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall occur as have determined not to any Project which results in damage in excess of $500,000repair or replace the Property affected by such Casualty Event), the Borrower shall give prompt notice prepay the Loans in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or Event not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be theretofore applied to the payment repair or replacement of the Obligations unless required such Property, such prepayment to be made available effected in each case in the manner and to the Borrower for Restoration hereunder, extent specified in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
clause (bvi) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claimbelow; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”)that, provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Borrower shall not be required to make a prepayment under this clause (i) to the extent that
(A) the Borrower advises the Administrative Agent shall retain at the right time of receipt thereof that it or such Subsidiary intends to participate (not to reinvest such Net Available Proceeds into the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent business of the Borrower and agree with its Subsidiaries, and
(B) such Net Available Proceeds are in fact so applied to such reinvestment within 270 days of receipt thereof (it being understood that, in the insurer(s) on event Net Available Proceeds from more than one Casualty Event are held by the amount Borrower, or have been applied to be paid on the lossprepayment of Revolving Loans, and the Insurance such Net Available Proceeds shall be due and payable solely deemed to be utilized in the same order in which such Casualty Event occurred and, accordingly, any such Net Available Proceeds so held or applied to the prepayment of Revolving Loans for more than 270 days shall be forthwith applied to the prepayment of Loans as provided above), it being understood that, if the Borrower does not so advise the Administrative Agent (on behalf of that it intends to use such Net Available Proceeds to make such reinvestment as provided above, or does not in fact apply such Net Available Proceeds to reinvestments within the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Eventtime periods specified above, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable prepay Loans in an amount equal to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedsamount specified above.
Appears in 2 contracts
Samples: Credit Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Casualty Events. (a) If a Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to to, make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, with the consent of the Required Lenders, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
Appears in 2 contracts
Samples: Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc)
Casualty Events. Not later than 60 days following the receipt by the Company or any of its Subsidiaries of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of any Supplemental Guarantor or acquired with the proceeds of Facility C Loans hereunder (or upon such earlier date as the Person owning such Property shall have determined not to repair or replace the Property affected by such Casualty Event), the Company shall prepay the Facility C Loans, in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore applied to the repair or replacement of such Property, such prepayments to be effected in each such case in the manner and to the extent specified in paragraphs (e)(i) and (e)(ii) below. In the event that such Net Available Proceeds exceed the outstanding amount of the Facility C Loans, such excess shall be applied to the prepayment of the Facility B Loans in accordance with the terms of the Existing Credit Agreement. Nothing in this paragraph (a) If shall be deemed to limit any obligation of the Company or any of its Subsidiaries pursuant to any of the Security Documents to remit to a collateral or similar account (including, without limitation, the Collateral Account) maintained by the Agent pursuant to any of the Security Documents the proceeds of insurance, condemnation award or other compensation received in respect of any Casualty Event. Notwithstanding the foregoing, in the event that a Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to Property of a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection Supplemental Guarantor or acquired with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions proceeds of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of Facility C Loans hereunder and covered by any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default existsMortgage, the Borrower may, upon notice to Company shall prepay the Administrative Agent, settle Facility C Loans on the dates and adjust any claim with respect to in the amounts specified in such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practiceMortgage. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or a Casualty Event involving Property not covered by this Section 2.09(a), the Net Available Proceeds of such Casualty Event shall be applied in excess accordance with the terms of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsExisting Credit Agreement.
Appears in 2 contracts
Samples: Supplemental Credit Agreement (Suiza Foods Corp), Supplemental Credit Agreement (Suiza Foods Corp)
Casualty Events. (a) If Not later than five Business Days following the receipt of any Net Cash Proceeds from a Casualty Event shall occur as to by any Project which results in damage in excess of $500,000Company, the Revolving Commitments shall be permanently reduced by an amount equal to 100% of such Net Cash Proceeds; provided that:
(i) so long as no Event of Default shall then exist or would arise therefrom, the Revolving Commitments shall not be required to be reduced on such date to the extent that Borrower shall give prompt notice of such damage have delivered to the Administrative Agent and shallan Officer’s Certificate of Borrower on or prior to such date stating that such proceeds are reasonably expected to be used (or committed to be used pursuant to a binding written agreement) to repair, replace or restore any property in respect of which such Net Cash Proceeds were paid or to reinvest in assets (other than working capital) used or useful in the business of Borrower or any Subsidiary Guarantor, no later than 365 days following the date of receipt of such proceeds (which Officer’s Certificate shall set forth the estimates of the proceeds to be so expended) (a “Casualty Reinvestment Certificate”); provided that if the property subject to such Casualty Event constituted Collateral, then all property purchased or otherwise acquired with the Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the provisions first priority perfected Lien (subject to Permitted Liens) of Section 10.03the applicable Security Documents in favor of the Collateral Agent, promptly commence for its benefit and diligently prosecute for the benefit of the other Secured Parties in accordance with Section 8.07 Sections 5.10 and this Article X 5.11; and
(ii) if all or any portion of such Net Cash Proceeds shall not be so applied (or committed to be used pursuant to a binding written agreement) within such 365-day period (or if committed to be used during such period are not so used within 180 days following the completion date of the repair and restoration binding written agreement relating thereto), the Revolving Commitments shall be permanently reduced on the last day of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior period by an amount equal to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs unused portion of such Restoration whether or not such costs are covered by Insurance Net Cash Proceeds. The Administrative Collateral Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunderhereby agrees that, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to event any proceeds from a Casualty Event that is not a Significant Casualty Event shall, subject are paid directly to the provisions of this AgreementCollateral Agent by the applicable insurer, be made available the Collateral Agent shall promptly return such cash proceeds to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of so long as (i) $5,000,000 no Event of Default then exists or would result therefrom and (ii) ten percent (10%) of Borrower shall have delivered to the Appraised Value of Administrative Agent a Casualty Reinvestment Certificate related to such Project (the “Insurance Threshold Amount”), provided Casualty Event and including a certification that no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to then exists or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedswould result therefrom.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement
Casualty Events. (a) If a Upon the date 270 days following the receipt by the --------------- Borrower or any of its Subsidiaries of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Borrower or any of its Subsidiaries (or upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall occur as have determined not to any Project which results in damage in excess of $500,000repair or replace the Property affected by such Casualty Event), the Borrower shall give prompt notice prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (g) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such damage Casualty Event not theretofore applied (or committed to be applied pursuant to executed construction contracts or equipment orders) to the Administrative Agent repair or replacement of such Property, such prepayment to be effected in each case in the manner and shall, subject to the provisions extent specified in paragraph (f) of this Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X 2.10. Notwithstanding the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possibleforegoing, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated required to make proof any prepayment (and/or provide cover for Letter of loss if Credit Liabilities) under this paragraph (a), and the Commitments shall not made promptly be subject to automatic reduction, until the aggregate amount of the Net Available Proceeds that must be prepaid under this paragraph (a) (reduced by the Borrower. All amount of such Net Available Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be that has previously been applied to the payment prepayment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions Loans or reduction of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to Commitments hereunder as a result of previous Casualty Event that Events) is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount at least equal to or $2,000,000. Nothing in excess of the Insurance Threshold Amount this paragraph (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent a) shall not be unreasonably withheld), settle and adjust deemed to limit any claim obligation of the Borrower and agree with its Subsidiaries pursuant to the insurer(s) on Security Agreement to remit to the amount to be paid on Collateral Account the lossproceeds of insurance, condemnation award or other compensation received in respect of any Casualty Event, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not release such proceeds to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment manner and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by provided in Section 4.01 of the Administrative Agent from such Insurance Proceeds in determining Net ProceedsSecurity Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Mediacom LLC), Credit Agreement (Mediacom LLC)
Casualty Events. (a) If a Within 30 days following the occurrence of any Casualty Event shall occur as affecting any Property (the "Affected Property") of any Obligor that is expected to any Project which results result in damage the receipt by such Obligor of Net Available Proceeds in excess of $500,0005,000,000, such Obligor shall deliver to the Borrower shall give prompt notice Lenders a statement, certified by the chief financial officer of such damage to the Administrative Agent Obligor and shall, subject to the provisions of Section 10.03, promptly commence in form and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice detail satisfactory to the Administrative Agent, settle and adjust of the amount of the Net Available Proceeds in excess of $5,000,000 of any claim with respect to insurance, condemnation award or other compensation resulting from such Casualty Event without Event. Such statement shall indicate whether the prior consent affected Obligor intends to (i) repair or replace the Affected Property, (ii) reinvest such Net Available Proceeds in Property of comparable value and substantially similar in respect of type, cash-flow profile and location, if applicable, or (iii) prepay the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out Loans in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to 100% of such Net Available Proceeds. If such Borrower has indicated that it intends to repair or replace the Affected Property or reinvest the Net Available Proceeds relating thereto in excess Property of comparable value (which Property is satisfactory to the Majority Lenders), such Borrower shall either (i) commence such repair or replacement not later than the later of (x) 30 days following the receipt of the Insurance Threshold Amount proceeds of any insurance, condemnation award or compensation in respect of such Casualty Event and (a “Significant Casualty Event”)y) the receipt of all governmental approvals required for the commencement of such repair or replacement or (ii) reinvest such proceeds not later than the later of (p) 90 days after the receipt thereof or (q) the receipt of all governmental approvals required for such reinvestment, provided no Event of Default exists, as the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any timecase may be. If an Event such Obligor has indicated that it does not intend to effect such repair, replacement or reinvestment, then promptly upon receipt of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Eventsuch funds, the Borrower shall immediately endorseprepay, subject to receipt of all government approvals, if any, required for such prepayment, the Loans, the Borrowing Base and cause all Threshold Amount shall be subject to automatic reduction, in an aggregate amount, if any, equal to the percentage of the Net Available Proceeds of such third parties Casualty Event attributable to endorseProperty which is then given value in determining the Borrowing Base or Threshold Amount and not theretofore applied to the repair or replacement of such Property, such check payable prepayment to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent be effected in each case in the settlement, adjustment and collection manner specified in paragraph (c) of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedsthis Section 2.09.
Appears in 2 contracts
Samples: Credit Agreement (Rutherford-Moran Oil Corp), Credit Agreement (Thai Romo LTD)
Casualty Events. (a) If a Upon the date 270 days following the receipt by the Borrower of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Borrower or any of its Subsidiaries (or upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall occur as have determined not to any Project which results in damage in excess of $500,000repair or replace the Property affected by such Casualty Event), the Borrower shall give prompt notice prepay the Loans in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or Event not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be theretofore applied to the payment repair or replacement of the Obligations unless required such Property, such prepayment to be made available effected in each case in the manner and to the Borrower for Restoration hereunder, extent specified in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
clause (bvi) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claimbelow; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”)that, provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Borrower shall not be required to make a prepayment under this clause (i) to the extent that
(A) the Borrower advises the Administrative Agent shall retain at the right time of receipt thereof that it intends to participate (not to reinvest such Net Available Proceeds into the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent business of the Borrower and agree with its Subsidiaries, and
(B) such Net Available Proceeds are in fact so applied to such reinvestment within 270 days of receipt thereof (it being understood that, in the insurer(s) on event Net Available Proceeds from more than one Casualty Event are held by the amount Borrower, or have been applied to be paid on the lossprepayment of Revolving Loans, and the Insurance such Net Available Proceeds shall be due and payable solely deemed to be utilized in the same order in which such Casualty Event occurred and, accordingly, any such Net Available Proceeds so held or applied to the prepayment of Revolving Loans for more than 270 days shall be forthwith applied to the prepayment of Loans as provided above), it being understood that, if the Borrower does not so advise the Administrative Agent (on behalf of that it intends to use such Net Available Proceeds to make such reinvestment as provided above, or does not in fact apply such Net Available Proceeds to reinvestments within the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Eventtime periods specified above, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable prepay Loans in an amount equal to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedsamount specified above.
Appears in 1 contract
Casualty Events. (a) If a Upon the date 60 days following the receipt by the Borrower of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any property of the Borrower or any of its Subsidiaries (or upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall occur as have determined not to any Project which results in damage in excess of $500,000repair or replace the property affected by such Casualty Event), the Borrower shall give prompt notice prepay the Loans (and/or provide cover for LC Exposure as specified in Section 2.04(k)), and/or the Commitments shall be subject to automatic reduction, in an aggregate amount, if any, equal to 75% of the Net Available Proceeds of such damage Casualty Event not theretofore applied to the repair or replacement of such property, such prepayment and/or reduction to be effected in each case in the manner and to the extent specified in clause (iii) of this paragraph, provided that the Borrower shall not be required to make any prepayment pursuant to this clause (i) until such time as the aggregate Net Available Proceeds of all Casualty Events not so applied to the repair or replacement of property shall exceed $1,000,000. Notwithstanding the foregoing, the Borrower shall not be required to make any prepayment pursuant to this clause (i) to the extent that (A) the Borrower advises the Administrative Agent within 60 days following the receipt by the Borrower of such Net Available Proceeds that it intends to reinvest such Net Available Proceeds into the business of the Borrower and shallits Subsidiaries, subject (B) such Net Available Proceeds are held by the Borrower in a segregated investment or other account until so reinvested, and (C) such Net Available Proceeds are in fact so reinvested within 270 days after receipt thereof by the Borrower (it being understood that, in the event that Net Available Proceeds related to more than one Casualty Event are held by the Borrower, such Net Available Proceeds shall be deemed to be utilized in the same order in which the Borrower received such Net Available Proceeds and, accordingly, any such Net Available Proceeds so held for more than 270 days shall be forthwith applied to the provisions prepayment of Section 10.03, promptly commence and diligently prosecute Loans as provided above). Nothing in accordance with Section 8.07 and this Article X the completion paragraph shall be deemed to limit any obligation of the repair and restoration Borrower or any of such Project in accordance with Applicable Law to, as nearly as reasonably possible, its Subsidiaries pursuant to any of the condition such Project was in immediately prior Security Documents to such Casualty Event, with such alterations as may be reasonably approved remit to a collateral or similar account maintained by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment any of the Obligations unless required to be made available to Security Documents the Borrower for Restoration hereunderproceeds of insurance, condemnation award or other compensation received in which case such Net Proceeds shall, subject to the provisions respect of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
Appears in 1 contract
Samples: Credit Agreement (Be Aerospace Inc)
Casualty Events. (a) If After the date upon which the Discharge of Senior Obligations occurs, not later than five Business Days following the receipt of any Net Cash Proceeds from a Casualty Event shall occur as to by Holdings or any Project which results in damage in excess of $500,000its Restricted Subsidiaries, the Borrower shall give prompt notice of such damage offer to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute make prepayments without premium or penalty in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”Sections 2.10(g) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (iih) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an aggregate amount equal to or in excess 100% of the Insurance Threshold Amount (a “Significant Casualty Event”), such Net Cash Proceeds; provided that:
i. no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds such prepayment shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrowerrequired under this Section 2.10(e) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(sEvent (x) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent extent such Casualty Event (on behalf together with any related Casualty Events) result in Net Cash Proceeds of the Lenders$1,000,000 or less or (y) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order an asset of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand any Foreign Restricted Subsidiary to the extent that (A) the Net Cash Proceeds of all such Casualty Events of all Foreign Restricted Subsidiaries together with the Net Cash Proceeds of Asset Sales described in Section 2.10(c)(i)(C)(1) do not already deducted exceed $20,000,000 in the aggregate during the term of this Agreement, (B) local Requirements of Law prohibit such Foreign Restricted Subsidiary from making payment of the Net Cash Proceeds of such Casualty Event to the Loan Parties, whether through the repayment of intercompany loans, dividends or otherwise (provided that to the extent any such Requirements of Law permit such payments at a later time, such prepayment shall be required within five Business Days thereafter) or (C) Borrower determines in good faith that repatriation to the United States of any such Net Cash Proceeds of a Casualty Event of a Foreign Restricted Subsidiary would have a material adverse tax consequence with respect to such funds (provided that if such funds are so repatriated by such Foreign Restricted Subsidiary, such repatriated funds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the Administrative Agent from prepayment pursuant to Section 2.10(g));
ii. so long as no Default shall then exist or arise therefrom, such Insurance proceeds shall not be required to be so applied on such date to the extent that such proceeds are expected to be used to repair, replace or restore any property in respect of which such Net Cash Proceeds were paid or to be reinvested in determining other fixed or capital assets to be used in Borrower’s business, or committed to be so used or reinvested, no later than 12 months following the date of receipt of such proceeds; provided that if all or any portion of such proceeds is not so used or reinvested within such 12-month period (or if the Loan Parties have entered into binding contractual commitments for reinvestment within such 12-month period, not so used or reinvested within 18 months following the date of such Casualty Event), such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.10(e); provided, further, that if the property subject to such Casualty Event constituted Collateral under the Security Documents, then all property purchased with the Net ProceedsCash Proceeds thereof pursuant to this subsection shall be made subject to the Lien of the applicable Security Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Sections 5.11 and 5.12; and
iii. if any portion of such Net Cash Proceeds shall not be so applied within such 12-month period (or if the Loan Parties have entered into binding contractual commitments for such application within such 12-month period, shall not be so applied within 18 months following the date of receipt of such proceeds), such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.10(e).
Appears in 1 contract
Samples: Second Lien Credit Agreement (CPI International Holding Corp.)
Casualty Events. (a) If a Upon the date 270 days following the receipt by the Borrower of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Borrower or any of its Subsidiaries (or upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall occur as have determined not to any Project which results in damage in excess of $500,000repair or replace the Property affected by such Casualty Event), the Borrower shall give prompt notice prepay the Loans in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or Event not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be theretofore applied to the payment repair or replacement of the Obligations unless required such Property, such prepayment to be made available effected in each case in the manner and to the Borrower for Restoration hereunder, extent specified in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
clause (bviii) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claimbelow; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”)that, provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Borrower shall not be required to make a prepayment under this clause (i) to the extent that
(A) the Borrower advises the Administrative Agent shall retain at the right time of receipt thereof that it intends to participate (not to reinvest such Net Available Proceeds into the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent business of the Borrower and agree with its Subsidiaries,
(B) such Net Available Proceeds are held by the insurer(sBorrower in a segregated investment or other account (or, alternatively, applied to the prepayment of Revolving Loans), to the extent such Net Available Proceeds equal an amount greater than $10,000,000, until so used to make such reinvestment as contemplated above, and
(C) on such Net Available Proceeds are in fact so applied to such reinvestment within 270 days of receipt thereof (it being understood that, in the amount event Net Available Proceeds from more than one Casualty Event are held by the Borrower, or have been applied to be paid on the lossprepayment of Revolving Loans, and the Insurance such Net Available Proceeds shall be due and payable solely deemed to be utilized in the same order in which such Dispositions occurred and, accordingly, any such Net Available Proceeds so held -57- or applied to the prepayment of Revolving Loans for more than 270 days shall be forthwith applied to the prepayment of Loans as provided above), it being understood that, if the Borrower does not so advise the Administrative Agent (on behalf of that it intends to use such Net Available Proceeds to make such reinvestment as provided above, or does not in fact apply such Net Available Proceeds to reinvestments within the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Eventtime periods specified above, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable prepay Loans in an amount equal to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedsamount specified above.
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Casualty Events. (a) If a Mortgagor shall promptly notify Mortgagee of any Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject Event. Subject to the provisions of Section 10.03the Credit Agreement, promptly commence Mortgagor hereby assigns to Mortgagee all insurance/condemnation proceeds, which Mortgagee is entitled to collect and diligently prosecute receive and the Net Cash Proceeds in respect of which, subject to application thereof in accordance with Section 8.07 and this Article X the completion 2.10(e) of the repair and restoration of such Project in accordance with Applicable Law toCredit Agreement, as nearly as reasonably possible, the condition such Project was in immediately prior shall be paid to such Casualty Event, with such alterations as may be reasonably approved Mortgagee by the Administrative Agent (a “Restoration”) for payor thereof or, if the same are nonetheless paid to Mortgagor, by Mortgagor immediately upon Mortgagor’s receipt thereof, and Mortgagor hereby authorizes and directs any Restoration for which such approval is otherwise required pursuant applicable insurance company, Governmental Authority and/or other payor to Section 10.03(e) or alteration for which such approval is otherwise required pursuant make all payments of insurance/condemnation proceeds directly to Section 8.07Mortgagee. The Borrower shall pay all costs Except to the extent inconsistent with the terms and conditions of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent the Subject Lease, Mortgagee may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied its option without regard to the payment adequacy of the Obligations unless required to be made available to the Borrower for Restoration hereunderits security, commence, appear in and prosecute, in which case such Net Proceeds shallits own name or Mortgagor’s name, subject to the provisions of this Agreementany action or proceeding, be made available to the Borrower to pay the costs incurred or make any compromises or settlements, in connection with the Restoration. All Net Proceeds with respect to a any Casualty Event that is not a Significant Casualty Event shallEvent; provided that, subject to the provisions of this Agreementin such event, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided so long as no Event of Default existshas occurred under the Loan Documents, the Borrower mayMortgagor shall, upon notice at its own expense, be entitled to the Administrative Agentreasonably participate in such action, settle and adjust proceeding, compromise or settlement. In no event shall Mortgagee have any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds liability with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In action, proceeding, compromise or settlement, or any failure to reach any terms thereof, and Mortgagee shall be under no obligation to question the event that Restoration amount of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and insurance/condemnation proceeds payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event. Mortgagor shall execute and deliver to Mortgagee, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(swithin ten (10) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorsedays after Mortgagee’s written request, such check payable to the order further assignments of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent any insurance/condemnation proceeds as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsMortgagee may reasonably require.
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Samples: Credit Agreement (Internap Corp)
Casualty Events. (a) If a Within 180 days following the receipt by the Borrowers or any of their Subsidiaries of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event shall occur as to affecting any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion property of the repair and restoration Borrowers or any of their Subsidiaries (or upon such Project in accordance with Applicable Law toearlier date as the Borrowers or any of their Subsidiaries, as nearly as reasonably possiblethe case may be, shall have determined not to repair or replace the condition such Project was in immediately prior to property affected by such Casualty Event), with the Borrowers shall prepay the Revolving Credit Loans by an aggregate amount, if any, equal to 100% of the Net Cash Payments from such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant Casualty Event not theretofore applied or committed to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the repair or replacement of such property (it being understood that (i) if Net Cash Payments committed to be applied are not in fact applied within 180 days of the respective Casualty Event, or the Borrowers or any of their Subsidiaries have not entered into binding contractual agreements as of such 180th day requiring payment of amounts at least equal to such funds in repair or replacement of the Obligations unless property affected by the Casualty Event, then such Net Cash Payments, or such lesser amount that is not required to be made available paid pursuant to such binding 26 HUTTIG CREDIT AGREEMENT contractual commitment, shall be applied to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration prepayment of the affected Project.
Revolving Credit Loans as provided in this clause (ba) If Restoration at the expiration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 such 180 day period and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no if an Event of Default existsshall have occurred and be continuing on the date such Net Cash Payments are received by the Borrowers or any of their Subsidiaries or at any time during such 180 day period, then the Borrower may, upon notice to Borrowers shall prepay the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out outstanding Loans in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess 100% of such Net Cash Payments (or, if any portion of such proceeds shall have been reinvested prior to the Insurance Threshold Amount (a “Significant Casualty Event”), provided no occurrence of such Event of Default existsDefault, the Borrower may, with the prior written consent 100% of the Administrative Agent (which consent shall such remaining amount of Net Cash Payments not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(sso reinvested) on the amount later of the date such Net Cash Payments are received by the Borrowers or any of their Subsidiaries or the date of the occurrence of such Event of Default), such prepayment to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) effected in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent each case in the settlement, adjustment manner and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds specified in determining Net Proceedsparagraph (e) of this Section 2.04.
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Casualty Events. (a) If a All Casualty Event Proceeds received by the Collateral Agent or any Vencor Company shall occur be deposited in the appropriate Casualty Proceeds Account established pursuant to Section 7(b) of the Security Agreement and applied as follows:
(i) such Casualty Proceeds will be released by the Collateral Agent from time to any Project which results in damage in excess of $500,000time, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion 18(e) of the repair and restoration Security Agreement, to restore, repair, replace or rebuild the asset in respect of which such Casualty Proceeds were received; and
(ii) if within 270 days after such Casualty Proceeds are received, the relevant Vencor Company shall not have expended or committed to expend the full amount of such Project Casualty Proceeds to restore, repair, replace or rebuild the asset in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to respect of which such Casualty EventProceeds were received (the excess of the amount of such Casualty Proceeds over the amount of such expenditures and commitments, with being "Excess Casualty Proceeds"), then such alterations as may Excess Casualty Proceeds shall be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required applied to prepay Loans pursuant to Section 10.03(e213(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs within two Domestic Business Days after the end of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project270-day period.
(b) If Restoration of any Project following Condemnation Event occurs with respect to property owned or leased by any Vencor Company, or if any negotiation or proceeding is commenced which might result in such a Casualty Condemnation Event, or if any such Condemnation Event is reasonably expected to cost not more than the lesser of proposed or threatened, such Vencor Company (i) $5,000,000 will, promptly after receiving notice or obtaining knowledge thereof, do all things deemed necessary or appropriate by it to preserve its interest in such property and promptly make claim for awards payable with respect thereto and diligently pursue to conclusion such claim and any suit, action or other proceeding necessary or appropriate to obtain payment thereof and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, will not settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to , negotiation or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim proceeding without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Collateral Agent (on behalf of the Lenders) and deposited if an Enforcement Notice is in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedseffect.
Appears in 1 contract
Samples: Credit Agreement (Vencor Inc)
Casualty Events. (a) If a Upon the date 90 days following the receipt by SSC or any of its Restricted Subsidiaries of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of SSC or any of its Restricted Subsidiaries (or upon such earlier date as such Borrower or Restricted Subsidiary, as the case may be, shall occur have determined not to repair or replace the Property affected by such Casualty Event), the Borrowers shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (h) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore applied to the repair or replacement of such Property, such prepayment and reduction to be effected in each case in the manner and to the extent specified in paragraph (g) of this Section 2.10. Nothing in this paragraph (b) shall be deemed to limit any obligation of SSC or any of its Restricted Subsidiaries pursuant to any Project which results in damage in excess of $500,000the Security Documents to remit to a collateral or similar account (including, without limitation, the Borrower shall give prompt notice of such damage to Collateral Account) maintained by the Administrative Agent pursuant to any of the Security Documents the proceeds of insurance, condemnation award or other compensation received in respect of any Casualty Event. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this paragraph (b) with respect to (and shall, the Commitments shall not be subject to reduction) (i) the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion first $1,000,000 of the Net Available Proceeds from Casualty Events received by SSC and its Restricted Subsidiaries after the Restatement Effective Date required to be so applied after giving effect to the following clause (ii) and (ii) the Net Available Proceeds from any Casualty Event in the event that the Borrowers advise the Administrative Agent not later than the 90th day following the date the Net Available Proceeds from such Casualty Event are received that they intend to use such Net Available Proceeds to repair and restoration or replace the Property that was the subject of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.so long as:
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Casualty Events. (a) If Not later than 15 Business Days following the receipt of any Net Cash Proceeds from a Casualty Event by any Group Member, the Borrowers shall occur as apply an amount equal to 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.10(h) and (i); provided, that:
(i) such Net Cash Proceeds shall not be required to be so applied on such date to the extent that (A) either (or both) (x) the Net Cash Proceeds of a Casualty Event do not exceed $6,250,000 per Casualty Event and/or (y) in respect of Net Cash Proceeds from Casualty Events, taken together with the Net Cash Proceeds of any Project which results in damage Asset Sale, not in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute 25,000,000 in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project fiscal year (the “Insurance Threshold AmountCasualty Event Threshold”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out or (B) in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or such Net Cash Proceeds exceed the Casualty Event Threshold, such proceeds in excess of the Insurance Casualty Event Threshold Amount (a “Significant Casualty Event”)x) are used to repair, provided no Event replace or restore any Property in respect of Default exists, which such Net Cash Proceeds were paid or to reinvest in other fixed or Capital Assets or assets that are otherwise used or useful in the Borrower may, with the prior written consent business of the Administrative Agent Group Members (which consent shall not be unreasonably withheld)including pursuant to a Permitted Acquisition, settle and adjust any claim of the Borrower and agree with the insurer(sInvestment or Capital Expenditure) on the amount or to be paid on contractually committed (or subject to a letter of intent) to be so reinvested, in each case, no later than 18 months (or within 24 months following receipt thereof if such contractual commitment or letter of intent to reinvest has been entered into within 18 months following receipt thereof) following the loss, and the Insurance date of receipt of such proceeds or (y) such Excess Net Cash Proceeds shall be due and payable solely deemed to have been reinvested in assets used or useful in the Administrative Agent business of any Group Member (on behalf of the Lenders); notwithstanding the foregoingincluding pursuant to a Permitted Acquisition, the Administrative Agent shall retain the right Investment or Capital Expenditure permitted hereunder) pursuant to participate (not to the exclusion of the Borrower) in any such insurance settlement at investment occurring in the 90 days preceding such date; and
(ii) if all or any time. If an Event portion of Default exists, with respect such Net Cash Proceeds that are the subject of clause (i) immediately above is neither reinvested nor contractually committed (or subject to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent a letter of the Borrower and agree with the insurer(sintent) on the amount to be paid on the lossso reinvested within such 18 month period (or is not actually reinvested within such additional six month period, and the Insurance Proceeds if applicable), such unused portion shall be due and payable solely to applied within 15 Business Days after the Administrative Agent (on behalf last day of the Lenders) and deposited such period as a mandatory prepayment as provided in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.this Section 2.10(e);
Appears in 1 contract
Casualty Events. (a) If a Upon the date 90 days following the receipt by the Borrower or any of its Subsidiaries of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Borrower or any of its Subsidiaries (or upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall occur as have determined not to any Project which results in damage in excess of $500,000repair or replace the Property affected by such Casualty Event), the Borrower shall give prompt notice prepay the Loans (and/or provide cover for Letter of such damage to Credit Liabilities as specified in paragraph (g) below), and the Administrative Agent and shall, Commitments shall be subject to the provisions of Section 10.03automatic reduction, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion an aggregate amount, if any, equal to 100% of the repair and restoration Net Available Proceeds of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without not theretofore applied (or committed to be applied pursuant to executed construction contracts or equipment orders) to the prior consent repair or replacement of such Property or to the Administrative Agent and purchase of other Property used or useful in the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount its Subsidiaries, such prepayment and reduction to be paid on effected in each case in the loss, manner and the Insurance Proceeds shall be due and payable solely to the Administrative Agent extent specified in paragraph (on behalf of the Lenders); f) below, PROVIDED that, notwithstanding the foregoing, the Administrative Agent Borrower shall retain not be required to make any prepayment or reduce the right Commitments under this paragraph (a) until such time as the aggregate amount of the required prepayments and reductions of Commitments hereunder, after deducting any such amounts previously applied to participate prepayments and reductions pursuant to this paragraph (not a), shall be greater than or equal to $1,000,000. Nothing in this paragraph (a) shall be deemed to limit any obligation of the Borrower and its Subsidiaries pursuant to the exclusion Security Agreement to remit to the Collateral Account the proceeds of the Borrower) insurance, condemnation award or other compensation received in any such insurance settlement at any time. If an Event respect of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf shall release such proceeds to the Borrower in the manner, and to the extent, provided in Section 4.01(d) of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsSecurity Agreement.
Appears in 1 contract
Samples: Credit Agreement (Panavision Inc)
Casualty Events. (a) If a Casualty Event shall occur MOI Contributed Vessel or SLH Contributed Vessel, as to any Project which results applicable, is damaged or destroyed, or the physical condition thereof is materially and adversely changed, in damage in excess of $500,000each case by a casualty or other loss (such MOI Contributed Vessel or SLH Contributed Vessel, as the case may be, the Borrower “Damaged Vessel”) at any time from the date of this Agreement until the Closing (a “Casualty Event”), then MOI or SLH, as the case may be, shall give prompt notice promptly notify the other Party of the occurrence of such damage Casualty Event. Following a Casualty Event, SLH and MOI shall cooperate in good faith to determine and mutually agree upon the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion amount of the repair cost of restoring such Damaged Vessel (and restoration of its related Contributed Assets located on such Project in accordance with Applicable Law to, as nearly as reasonably possible, Damaged Vessel) to substantially the same condition such Project was in immediately prior to such Casualty Event; provided that, with if SLH and MOI are unable to mutually agree to such alterations as may be amount within twenty (20) days after delivery by MOI or SLH to the other Party of written notice of the occurrence of such Casualty Event, then SLH and MOI will engage an independent qualified firm, reasonably approved by the Administrative Agent acceptable to SLH and MOI (a “RestorationQualified Firm”), to promptly determine the amount of the cost of restoring such Damaged Vessel (and its related Contributed Assets located on such Damaged Vessel) to substantially the same condition prior to such Casualty Event (as mutually agreed to by SLH and MOI or as determined by the Qualified Firm, the “Restoration Cost”). If the restoration of such Damaged Vessel to substantially the same condition prior to such Casualty Event would not be completed prior to the Closing, then the Party that does not own such Damaged Vessel (the “Electing Party”) for any Restoration for which such approval is otherwise required pursuant shall have the right to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shallelect, subject to the provisions other Party’s written consent (which consent shall not be unreasonable withheld, conditioned or delayed) (the “Casualty Election”), by delivery of this Agreement, be made available a written notice of such election to the Borrower other Party within thirty (30) days following the Electing Party’s receipt of notice of such Casualty Event, to pay either:
(i) cause the costs incurred Company, or its wholly-owned Subsidiary designee, to take possession of such Damaged Vessel in connection with the Restoration. All Net Proceeds with respect Closing and, at the Electing Party’s option, either (A) reduce the MOI Contributed Value or the SLH Contributed Value, as the case may be, and the Aggregate Contributed Value, in each case, by an amount equal to a the Restoration Cost, or (B) require MOI or SLH, as the case may be, to assign to the Company, or its wholly-owned Subsidiary designee, any insurance or other proceeds relating to such Casualty Event that is not a Significant Casualty Event shall, subject at the Closing less (and only to the provisions extent of) any amounts used by such Party for restoration and repair of this Agreementsuch Damaged Vessel prior to Closing;
(ii) exclude such Damaged Vessel from the Transactions and reduce the MOI Contributed Value or the SLH Contributed Value, be made available as applicable, and the Aggregate Contributed Value, in each case, by an amount equal to the Borrower to pay the costs incurred in connection with the Restoration applicable portion of the affected Project.Aggregate Contributed Value attributed to such Damaged Vessel (and its related Contributed Assets located on such Damaged Vessel) as set forth on Section 8.3 of the MOI Disclosure Schedule or Section 8.3 of the SLH Disclosure Schedule, as applicable; or
(b) If Notwithstanding the forgoing, if the Restoration of Cost arising from any Project following a Casualty Event (individually or in combination with any other Casualty Event(s)) is reasonably expected determined in accordance with this Agreement to cost not more than the lesser of (i) $5,000,000 and (ii) ten be thirty percent (1030%) or more of the Appraised Aggregate Contributed Value of such Project (the “Insurance Threshold Amount”which Aggregate Contributed Value will be determined assuming no Casualty Events have occurred), provided no Event of Default exists, then the Borrower may, upon notice Electing Party (in addition to the Administrative Agentright to make the Casualty Elections pursuant to Section 8.3(a)) shall have the right to elect, settle and adjust any claim with respect subject to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent other Party (which consent shall not be unreasonably withheldwithheld conditioned or delayed) to terminate this Agreement by delivering written notice of such election to termination to the other Party.
(c) In connection with any assignment of awards, proceeds or insurance under Section 8.3(a)(i)(B), settle and adjust any claim (i) the portion of the Borrower and agree with Aggregate Contributed Value allocated to the insurer(s) on applicable Damaged Vessel as set forth under Section 8.3 of the MOI Disclosure Schedule or Section 8.3 of the SLH Disclosure Schedule shall be reduced by an amount equal to the applicable deductible or self-insured retention amount under MOI’s insurance or SLH’s insurance, as applicable (provided, that such reduction shall not exceed the amount by which the cost, as of the Closing Date, to be paid on repair the lossDamaged Vessel is greater than the amount of insurance proceeds assigned to the Company, or its wholly-owned Subsidiary designee), and the Insurance Proceeds (ii) such assignment of proceeds or awards shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on reduced by the amount to be paid on the lossof (A) all actual and documented, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses repair costs incurred by MOI or SLH or their respective Affiliates, as the Administrative Agent case may be, in connection with such Damaged Vessel and (B) all actual and documented, out-of-pocket collection costs of MOI or SLH or their respective Affiliates respecting any awards or other proceeds.
(d) If a Damaged Vessel is excluded from the settlementTransactions in accordance with the terms and conditions of this Section 8.3, adjustment then such Damaged Vessel shall automatically be deemed to be an Excluded Asset hereunder and collection such Damaged Vessel shall be removed from Annex A and the applicable sections of the Insurance Proceeds shall become part SLH Disclosure Schedules or the MOI Disclosure Schedules, as applicable, provided, however, that the failure of the Obligations Parties to so remove such Damaged Vessel from Annex A and the applicable sections of the SLH Disclosure Schedules or the MOI Disclosure Schedules will not prevent the exclusion of such Damaged Vessel from the Transactions from being effective.
(e) Section 8.3 of the MOI Disclosure Schedule shall be reimbursed by set forth the Borrower applicable portion of the Aggregate Contributed Value attributable to each MOI Contributed Vessel, and Section 8.3 of the SLH Disclosure Schedule shall set forth the applicable portion of the Aggregate Contributed Value attributable to each SLH Contributed Vessel.
(f) Notwithstanding anything in this Agreement to the Administrative Agent upon demand contrary, (i) if any Casualty Event occurs less than fifteen (15) Business Days prior to the extent Outside Date and the conditions set forth in Article VII have been satisfied or waived (other than those conditions that by their terms or nature are to be satisfied at the Closing), the Parties agree to work in good faith to expedite the determination of the Restoration Cost in accordance with Section 8.3(a), except that the Parties shall disregard all time periods set forth in such Section 8.3(a) in an effort to complete the process set forth therein prior to the Outside Date; or (ii) if at any time the Closing is to occur in accordance with Section 2.4, a Casualty Event shall have occurred and the determination of the Restoration Cost in connection with such Casualty Event shall not already deducted have been completed in accordance with Section 8.3(a), then either MOI or SLH may elect by written notice to the Administrative Agent from other Party to delay the Closing until the fifteenth (15th) Business Day following the date on which such Insurance Proceeds determination has been completed; provided that the conditions set forth in determining Net ProceedsArticle VII have been satisfied or waived (other than those conditions that by their terms or nature are to be satisfied at the Closing).
Appears in 1 contract
Samples: Joint Venture Contribution and Formation Agreement (SEACOR Marine Holdings Inc.)
Casualty Events. Promptly, and in any event within two (a2) If a Casualty Event shall occur as to any Project which results in damage in excess Business Days of $500,000, receipt by the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration proceeds of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust Net Cash Proceeds from any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorsebe required to prepay the Notes issued by it in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Casualty Event; provided that, so long as (A) no Default or Event of Default shall have occurred and cause all is continuing or would result therefrom, (B) the Borrower shall have given the Purchasers at least five (5) Business Days’ prior written notice of the Borrower’s intention to apply such third parties to endorse, such check payable monies to the order costs of replacement of the Administrative Agent. The properties or assets that are the subject of such Casualty Event or the cost of purchase or construction of other assets useful in the business of the Borrower hereby irrevocably appoints or its Subsidiaries, (C) the Administrative Agent monies are held in a deposit account in which the Purchasers have a perfected security interest (subject only to Permitted Liens) and (D) the Borrower or its Subsidiaries, as its attorney-in-factapplicable, coupled actually applies such monies to and completes such replacement, purchase, or construction within 180 days after the initial receipt of such monies, then the Borrower whose assets were the subject of such Casualty Event shall have the option to apply such monies in an amount not to exceed $100,000 (with an interest, any Net Cash Proceeds in excess of $100,000 to endorse such check payable be applied to prepay the Notes) to the order costs of replacement of the Administrative Agent. The reasonable out-of-pocket expenses incurred by assets that are the Administrative Agent subject of such Casualty Event or the costs of purchase or construction of other assets useful in the settlement, adjustment and collection business of the Insurance Proceeds shall become part of the Obligations Borrower unless and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by that such applicable period shall have expired without such replacement, purchase, or construction being made or completed, in which case, any amounts remaining in the Administrative Agent from such Insurance Proceeds deposit account referred to in determining Net Proceedsclause (C) above shall be immediately paid to the Purchasers and applied in prepayment of the Notes in accordance with Section 3.3. Nothing contained in this Section 3.2(c) shall permit the Borrower or any Subsidiary to sell or otherwise dispose of any assets other than in accordance with Section 9.4.
Appears in 1 contract
Casualty Events. (a) If a After the occurrence of any Casualty Event shall occur as (other than any Casualty Event with respect only to any Project which results Property covered by the Mortgages) resulting in damage a loss in excess of $500,000, the Borrower Company shall give prompt notice of such damage thereof to the Administrative Agent and shallthe Lenders. If no Default has occurred and is continuing, subject the Company may, at its option, to be exercised by delivery of notice to the provisions Administrative Agent and the Lenders within four months of Section 10.03such Casualty Event, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X elect to apply the completion Net Available Proceeds of such Casualty Event to either (i) the repair or replacement of the Property affected thereby or (ii) the prepayment of the Loans (and/or the provision of cover for Letter of Credit Liabilities as specified in paragraph (g) of this Section 2.10) in the manner and to the extent specified in paragraph (f) of this Section 2.10. If a Default has occurred and is continuing, or if the Company fails to make such an election within four months from the date of any such Casualty Event, such Net Available Proceeds shall automatically be applied to the prepayment of the Loans in the manner and to the extent specified in paragraph (f) of this Section 2.10 (and/or the provision of cover for Letter of Credit Liabilities as specified in paragraph (g) of this Section 2.10). If the Company elects to so repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, or replace the condition such Project was in immediately prior Property subject to such Casualty Event, with the Net Available Proceeds of such alterations as may Casualty Event in excess of $500,000 shall be reasonably approved held by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available such repair or replacement and advanced to the Borrower for Restoration hereunder, Company in which case periodic installments upon compliance by the Company with such Net Proceeds shall, subject to the provisions of this Agreement, reasonable conditions as may be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to imposed by the Administrative Agent, settle including, but not limited to, reasonable retentions and adjust lien releases. Interest, if any, actually earned on any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Net Available Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, held by the Administrative Agent shall retain be credited to such Net Available Proceeds, for the right to participate (not to the exclusion benefit of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsCompany.
Appears in 1 contract
Casualty Events. Promptly, and in any event within two (a2) If Business Days of receipt by the Borrower of the proceeds of any Net Cash Proceeds from any Casualty Event (other than Net Cash Proceeds arising from or constituting Net Cash Proceeds of any ABL Priority Collateral (to the extent that the ABL Credit Agreement requires such Net Cash Proceeds to prepay (or cash collateralize) the obligations outstanding under the ABL Credit Agreement), the Borrower shall be required to prepay the Notes issued by it in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such Casualty Event plus the Prepayment Fee; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing or would result therefrom, (B) the Borrower shall have given the Purchasers prior written notice of the Borrower’s intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such Casualty Event or the cost of purchase or construction of other assets useful in the business of the Borrower or its Subsidiaries, (C) the monies are held in a deposit account in which the Purchasers have a perfected security interest (subject only to Permitted Liens) and (D) the Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction within 180 days after the initial receipt of such monies, then the Borrower whose assets were the subject of such Casualty Event shall occur as have the option to apply such monies in an amount not to exceed $500,000 (with any Project which results in damage Net Cash Proceeds in excess of $500,000, 500,000 to be applied to prepay the Notes) to the costs of replacement of the assets that are the subject of such Casualty Event or the costs of purchase or construction of other assets useful in the business of the Borrower shall give prompt notice of such damage unless and to the Administrative Agent and shallextent that such applicable period shall have expired without such replacement, subject purchase, or construction being made or completed, in which case, any amounts remaining in the deposit account referred to in clause (C) above shall be immediately paid to the provisions Purchasers and applied in prepayment of Section 10.03, promptly commence and diligently prosecute the Notes in accordance with Section 8.07 and 3.3. Nothing contained in this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”Section 3.2(c) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If permit the Borrower or any party Subsidiary to sell or otherwise dispose of any assets other than the Administrative Agent is a payee on any check representing Insurance Proceeds in accordance with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsSection 9.4.
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Casualty Events. Not later than 60 days following the receipt by the Company or any of its Subsidiaries of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of any Supplemental Guarantor or acquired with the proceeds of CREDIT AGREEMENT Facility C Loans or Facility D Loans hereunder (or upon such earlier date as the Person owning such Property shall have determined not to repair or replace the Property affected by such Casualty Event), the Company shall prepay the Facility C Loans or Facility D Loans, as the case may be, in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore applied to the repair or replacement of such Property, such prepayments to be effected in each such case in the manner and to the extent specified in paragraph (e). In the event that such Net Available Proceeds exceed the outstanding amount of the Facility C Loans or Facility D Loans, such excess shall be applied to the prepayment of the Facility B Loans in accordance with the terms of the Existing Credit Agreement. Nothing in this paragraph (a) If shall be deemed to limit any obligation of the Company or any of its Subsidiaries pursuant to any of the Security Documents to remit to a collateral or similar account (including, without limitation, the Collateral Account) maintained by the Agent pursuant to any of the Security Documents the proceeds of insurance, condemnation award or other compensation received in respect of any Casualty Event. Notwithstanding the foregoing, in the event that a Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to Property of a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection Supplemental Guarantor or acquired with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions proceeds of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of Facility C Loans or Facility D Loans hereunder and covered by any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default existsMortgage, the Borrower may, upon notice to Company shall prepay the Administrative Agent, settle Facility C Loans or the Facility D Loans on the dates and adjust any claim with respect to in the amounts specified in such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practiceMortgage. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or a Casualty Event involving Property not covered by this Section 2.09(a), the Net Available Proceeds of such Casualty Event shall be applied in excess accordance with the terms of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsExisting Credit Agreement.
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Casualty Events. (a) If Not later than 15 Business Days following the receipt of any Net Cash Proceeds from a Casualty Event by any Group Member, the Borrowers shall occur as apply an amount equal to 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.10(h) and (i); provided, that:
(i) (i) such Net Cash Proceeds shall not be required to be so applied on such date to the extent that (A) either (or both) (x) the Net Cash Proceeds of a Casualty Event do not exceed $6,250,000 per Casualty Event and/or (y) in respect of Net Cash Proceeds from Casualty Events, taken together with the Net Cash Proceeds of any Project which results in damage Asset Sale, not in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute 25,000,000 in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project fiscal year (the “Insurance Threshold AmountCasualty Event Threshold”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out or (B) in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or such Net Cash Proceeds exceed the Casualty Event Threshold, such proceeds in excess of the Insurance Casualty Event Threshold Amount (a “Significant Casualty Event”)x) are used to repair, provided no Event replace or restore any Property in respect of Default exists, which such Net Cash Proceeds were paid or to reinvest in other fixed or Capital Assets or assets that are otherwise used or useful in the Borrower may, with the prior written consent business of the Administrative Agent Group Members (which consent shall not be unreasonably withheld)including pursuant to a Permitted Acquisition, settle and adjust any claim of the Borrower and agree with the insurer(sInvestment or Capital Expenditure) on the amount or to be paid on contractually committed (or subject to a letter of intent) to be so reinvested, in each case, no later than 18 months (or within 24 months following receipt thereof if such contractual commitment or letter of intent to reinvest has been entered into within 18 months following receipt thereof) following the loss, and the Insurance date of receipt of such proceeds or (y) such Excess Net Cash Proceeds shall be due and payable solely deemed to have been reinvested in assets used or useful in the Administrative Agent business of any Group Member (on behalf of the Lenders); notwithstanding the foregoingincluding pursuant to a Permitted Acquisition, the Administrative Agent shall retain the right Investment or Capital Expenditure permitted hereunder) pursuant to participate (not to the exclusion of the Borrower) in any such insurance settlement at investment occurring in the 90 days preceding such date; and
(ii) (ii) if all or any time. If an Event portion of Default exists, with respect such Net Cash Proceeds that are the subject of clause (i) immediately above is neither reinvested nor contractually committed (or subject to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent a letter of the Borrower and agree with the insurer(sintent) on the amount to be paid on the lossso reinvested within such 18 month period (or is not actually reinvested within such additional six month period, and the Insurance Proceeds if applicable), such unused portion shall be due and payable solely to applied within 15 Business Days after the Administrative Agent (on behalf last day of the Lenders) and deposited such period as a mandatory prepayment as provided in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.this Section 2.10(e);
Appears in 1 contract
Samples: Credit Agreement (Solera Corp.)
Casualty Events. (a) If Not later than 10 Business Days following the receipt of any Net Available Proceeds from a Casualty Event shall occur as to by Borrower or any Project which results in damage in excess of $500,000its Subsidiaries, the Borrower shall give prompt notice make prepayments in accordance with Sections 2.10(h) and (i) in an aggregate amount equal to 100% of such damage Net Available Proceeds; provided that
(i) so long as no Default has occurred and is continuing, such proceeds shall not be required to be so applied on such date to the extent that (A) Borrower shall have delivered an Officers’ Certificate to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately on or prior to such Casualty Eventdate stating that such proceeds are expected to be used to repair, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for replace or restore any Restoration for property in respect of which such approval is otherwise required pursuant to Section 10.03(eNet Available Proceeds were paid no later than 12 months following the date of receipt of such proceeds or (B) or alteration for the aggregate amount of Net Available Proceeds of Casualty Events (excluding proceeds described in clause (i)(A)) does not exceed $25,000,000 in the fiscal year of Borrower in which such approval is otherwise required pursuant to Section 8.07. The Net Available Proceeds are received by Borrower shall pay all costs or any of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss its Subsidiaries; provided that if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, property subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without constituted (i) Collateral consisting of Mortgaged Vessels, or (ii) Collateral other than Mortgaged Vessels, then all or substantially all (as determined by the prior consent Collateral Agent) property purchased with the Net Available Proceeds thereof pursuant to this subsection shall be made subject to the Lien of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out applicable Security Documents in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess favor of the Insurance Threshold Amount (a “Significant Casualty Event”)Collateral Agent or Mortgage Trustee, provided no Event of Default existsas applicable, for its benefit and for the Borrower may, with the prior written consent benefit of the Administrative Agent other Secured Parties in accordance with Sections 5.11 and 5.12; and
(which consent ii) if any portion of such Net Available Proceeds described in clause (i)(A) above shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoingso applied within such 12-month period, the Administrative Agent shall retain aggregate amount of such unused Net Available Proceeds from Casualty Events (including proceeds described in clause (i)(B) above) exceeding $25,000,000 in the right to participate (not to the exclusion fiscal year of the Borrower) Borrower in any which such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Net Available Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the are received by Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and Subsidiaries shall be reimbursed by applied on or before the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from last day of such Insurance Proceeds period as a mandatory prepayment as provided in determining Net Proceedsthis Section 2.10(f).
Appears in 1 contract
Casualty Events. Not later than 60 days following the receipt by the Company or any of its Subsidiaries (other than a Supplemental Guarantor) of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Company or any of its Subsidiaries (other than Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement) (or upon such earlier date as the Person owning such Property shall have determined not to repair or replace the Property affected by such Casualty Event), the Company shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (f) below), and the Facility A Commitments shall be subject to automatic reduction, in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore applied to the repair or replacement of such Property or prepayment of the Facility B Loans, such prepayment and reduction to be effected in each such case in the manner and to the extent specified in paragraph (e) below. Nothing in this paragraph (a) If shall be deemed to limit any obligation of the Company or any of its Subsidiaries pursuant to any of the Security Documents to remit to a collateral or similar account (including, without limitation, the Collateral Account) maintained by the Agent pursuant to any of the Security Documents the proceeds of insurance, condemnation award or other compensation received in respect of any Casualty Event. Notwithstanding the foregoing, in the event that a Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to Property of the Company or any of its Subsidiaries (other than Property of a Significant Casualty EventSupplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement) and covered by any Mortgage, shall, at the Administrative Agent’s option, be applied Company shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities) on the dates and in the amounts to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, extent specified in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practiceMortgage. In the event that Restoration of any Project is reasonably expected to cost an amount equal to a Casualty Event involving Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement, the Net Available Proceeds of such Casualty Event shall be applied in excess accordance with the terms of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsSecond Restated Supplemental Credit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Suiza Foods Corp)
Casualty Events. Upon the earlier to occur of (ai) If a Casualty Event shall occur as to the date 30 days following the date of receipt by the Company or any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved its Subsidiaries (or receipt by the Administrative Agent or any Holder as loss payee) of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any property of the Company or any of its Subsidiaries (a “Restoration”) for any Restoration for which or upon such approval is otherwise required pursuant earlier date as the Company or such Subsidiary, as the case may be, shall have determined not to Section 10.03(e) repair or alteration for which replace the property affected by such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten the date falling 180 days after the occurrence of the event giving rise to such prepayment, the Company shall immediately prepay the Senior Subordinated Notes in an aggregate amount, if any, equal to one hundred percent (10100%) of the Appraised Value Net Insurance/Condemnation Proceeds thereof not theretofore applied to the repair or replacement of such Project property or required to be applied (the “Insurance Threshold Amount”)including amounts theretofore or concurrently therewith applied as so required) in accordance with, provided no Event of Default existsor pursuant to, the Borrower mayterms of the Credit Agreement as in effect on the Closing Date to permanently pay or permanently prepay the Loans under the Credit Agreement (it being noted, upon notice for the avoidance of doubt, that if the relevant terms of the Credit Agreement are amended, waived or otherwise modified with the effect that the amount required to be applied in accordance with, or pursuant to, the terms of the Credit Agreement to pay or prepay the Loans under the Credit Agreement is reduced, the amount of such reduction shall not be construed as being required to be applied to permanently pay or permanently prepay the Loans under the Credit Agreement for the purposes of this Section 8.4(a)); provided that, to the Administrative Agent, settle and adjust extent any claim with respect to such Casualty Event without relates to a Satellite that has suffered a Partial Failure, a Total Failure or a Constructive Total Failure, (i) the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Net Insurance/Condemnation Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheldused for the repair or replacement of such Satellite and (ii) the Senior Subordinated Notes shall be immediately prepaid with such Net Insurance/Condemnation Proceeds, less the amount thereof required to be applied (including amounts theretofore or concurrently therewith applied as so required) in accordance with, or pursuant to, the terms of the Credit Agreement as in effect on the Closing Date to permanently pay or permanently prepay the Loans under the Credit Agreement (it being noted, for the avoidance of doubt, that if the relevant terms of the Credit Agreement are amended, waived or otherwise modified with the effect that the amount required to be applied in accordance with, or pursuant to, the terms of the Credit Agreement to pay or prepay the Loans under the Credit Agreement is reduced, the amount of such reduction shall not be construed as being required to be applied to permanently pay or permanently prepay the Loans under the Credit Agreement for the purposes of this Section 8.4(a)), settle and adjust any claim within three Business Days of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf receipt of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedsproceeds.
Appears in 1 contract
Samples: Senior Subordinated Note Purchase Agreement (Digitalglobe Inc)
Casualty Events. (a) If a All Casualty Event Proceeds received by the Collateral Agent or any MHG Company shall occur be deposited in the appropriate Casualty Proceeds Account (as defined in the Security Agreement) established pursuant to any Project which results in damage in excess Section 7(b) of $500,000the Security Agreement and applied as follows:
(i) such Casualty Proceeds will be released by the Collateral Agent from time to time, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion 18 of the repair and restoration Security Agreement, to restore, repair, replace or rebuild the asset in respect of which such Casualty Proceeds were received; and
(ii) if within 60 days after such Casualty Proceeds are received, the relevant MHG Company shall not have expended or committed to expend the full amount of such Project Casualty Proceeds to restore, repair, replace or rebuild the asset in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to respect of which such Casualty EventProceeds were received (the excess of the amount of such Casualty Proceeds over the amount of such expenditures and commitments, with being "Excess Casualty Proceeds"), then such alterations as may Excess Casualty Proceeds shall be reasonably approved by applied to prepay Loans to the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise extent required pursuant to Section 10.03(e2.08(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs within two Business Days after the end of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project60-day period.
(b) If Restoration of any Project following Condemnation Event occurs with respect to property owned or leased by any MHG Company, or if any negotiation or proceeding is commenced which might result in such a Casualty Condemnation Event, or if any such Condemnation Event is reasonably expected to cost not more than the lesser of proposed or threatened, such MHG Company (i) $5,000,000 will, promptly after receiving notice or obtaining knowledge thereof, do all things deemed necessary or appropriate by it to preserve its interest in such property and promptly make claim for awards payable with respect thereto and diligently pursue to conclusion such claim and any suit, action or other proceeding necessary or appropriate to obtain payment thereof and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, will not settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to , negotiation or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim proceeding without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Collateral Agent (on behalf of the Lenders) and deposited if an Enforcement Notice is in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedseffect.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Mariner Post Acute Network Inc)
Casualty Events. (a) If a Mortgagor shall promptly notify Mortgagee of any Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject Event. Subject to the provisions of Section 10.03the Credit Agreement, promptly commence Mortgagor hereby assigns to Mortgagee all insurance/condemnation proceeds, which Mortgagee is entitled to collect and diligently prosecute receive and the Net Cash Proceeds in respect of which, subject to application thereof in accordance with Section 8.07 and this Article X the completion 2.10(e) of the repair and restoration of such Project in accordance with Applicable Law toCredit Agreement, as nearly as reasonably possible, the condition such Project was in immediately prior shall be paid to such Casualty Event, with such alterations as may be reasonably approved Mortgagee by the Administrative Agent (a “Restoration”) for payor thereof or, if the same are nonetheless paid to Mortgagor, by Mortgagor immediately upon Mortgagor’s receipt thereof, and Mortgagor hereby authorizes and directs any Restoration for which such approval is otherwise required pursuant applicable insurance company, Governmental Authority and/or other payor to Section 10.03(e) or alteration for which such approval is otherwise required pursuant make all payments of insurance/condemnation proceeds directly to Section 8.07Mortgagee. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent Mortgagee may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied its option without regard to the payment adequacy of the Obligations unless required to be made available to the Borrower for Restoration hereunderits security, commence, appear in and prosecute, in which case such Net Proceeds shallits own name or Mortgagor’s name, subject to the provisions of this Agreementany action or proceeding, be made available to the Borrower to pay the costs incurred or make any compromises or settlements, in connection with the Restoration. All Net Proceeds with respect to a any Casualty Event that is not a Significant Casualty Event shallEvent; provided that, subject to the provisions of this Agreementin such event, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided so long as no Event of Default existshas occurred under the Loan Documents, the Borrower mayMortgagor shall, upon notice at its own expense, be entitled to the Administrative Agentreasonably participate in such action, settle and adjust proceeding, compromise or settlement. In no event shall Mortgagee have any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds liability with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In action, proceeding, compromise or settlement, or any failure to reach any terms thereof, and Mortgagee shall be under no obligation to question the event that Restoration amount of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and insurance/condemnation proceeds payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event. Mortgagor shall execute and deliver to Mortgagee, the Administrative Agentwithin ten (10) days after Mortgagee’s written request, such further assignments of any insurance/condemnation proceeds as Mortgagee may reasonably require.
(b) Mortgagee shall apply all insurance/condemnation proceeds received by Mortgagee in its sole discretion, may settle and adjust any claim without the consent accordance with Section 2.10(f) of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsCredit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Internap Corp)
Casualty Events. (a) If a All Casualty Event Proceeds received by the Collateral Agent or any Vencor Company shall occur be deposited in the appropriate Casualty Proceeds Account (as defined in the Security Agreement) established pursuant to any Project which results in damage in excess Section 7(b) of $500,000the Security Agreement and applied as follows:
(i) such Casualty Proceeds will be released by the Collateral Agent from time to time, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion 18(e) of the repair and restoration Security Agreement, to restore, repair, replace or rebuild the asset in respect of which such Casualty Proceeds were received; and
(ii) if within 120 days after such Casualty Proceeds are received, the relevant Vencor Company shall not have expended or committed to expend the full amount of such Project Casualty Proceeds to restore, repair, replace or rebuild the asset in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to respect of which such Casualty EventProceeds were received (the excess of the amount of such Casualty Proceeds over the amount of such expenditures and commitments, with being "Excess Casualty Proceeds"), then such alterations as may Excess Casualty Proceeds shall be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required applied to prepay Loans pursuant to Section 10.03(e2.08(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs within two Business Days after the end of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project120-day period.
(b) If Restoration of any Project following Condemnation Event occurs with respect to property owned or leased by any Vencor Company, or if any negotiation or proceeding is commenced which might result in such a Casualty Condemnation Event, or if any such Condemnation Event is reasonably expected to cost not more than the lesser of proposed or threatened, such Vencor Company (i) $5,000,000 will, promptly after receiving notice or obtaining knowledge thereof, do all things deemed necessary or appropriate by it to preserve its interest in such property and promptly make claim for awards payable with respect thereto and diligently pursue to conclusion such claim and any suit, action or other proceeding necessary or appropriate to obtain payment thereof and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, will not settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to , negotiation or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim proceeding without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Collateral Agent (on behalf of the Lenders) and deposited if an Enforcement Notice is in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedseffect.
Appears in 1 contract
Samples: Debt Agreement (Vencor Inc)
Casualty Events. (a) If Not later than 15 Business Days following the receipt of any Net Cash Proceeds from a Casualty Event shall occur as to by any Project which results in damage in excess of $500,000Group Member, the Borrower shall give prompt notice apply an amount equal to the Applicable Net Cash Proceeds Percentage of such damage Net Cash Proceeds to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute make prepayments in accordance with Section 8.07 2.10(h) and this Article X (i); provided, that, in the completion event that the Borrower has provided notice of its intention or expectation to reinvest any Net Cash Proceeds pursuant to clause (ii) below, the Applicable Net Cash Proceeds Percentage may, at any time during the permissible reinvestment period of 18 or 24 months, as applicable, in the Borrower’s sole discretion, be recalculated, and to the extent such Applicable Net Cash Proceeds Percentage as recalculated is lower than the originally applicable level, such lower Applicable Net Cash Proceeds Percentage shall be applicable to the requirement to reinvest and the requirement to make prepayments shall be correspondingly reduced (as if such lower Applicable Net Cash Proceeds Percentage had been in effect at the time of the repair and restoration of applicable Asset Sale); provided that
(i) such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but Net Cash Proceeds shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available so applied on such date to the Borrower for Restoration hereunder, in which case such extent that (A) either (or both) (x) the Net Cash Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is do not a Significant exceed the greater of $5,500,000 and 10.0% of Consolidated EBITDA for the most recently ended Test Period per Casualty Event shall, subject to the provisions and/or (y) in respect of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost Net Cash Proceeds not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount greater of $11,000,000 and 20.0% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year (a the “Significant Casualty EventEvent Threshold”), provided no or (B) in the event that such Net Cash Proceeds exceed the Casualty Event of Default existsThreshold, the Borrower may, with the prior written consent such proceeds in excess of the Administrative Agent Casualty Event Threshold (x) are used to repair, replace or restore any Property in respect of which consent shall not be unreasonably withheld), settle and adjust any claim such Net Cash Proceeds were paid or to reinvest in other fixed or Capital Assets or assets that are otherwise used or useful in the business of the Borrower and agree with the insurer(sGroup Members (including pursuant to a Permitted Acquisition, Investment or Capital Expenditure) on the amount or to be paid on contractually committed (or subject to a letter of intent) to be so reinvested, in each case, no later than 18 months (or within 24 months following receipt thereof if such contractual commitment or letter of intent to reinvest has been entered into within 18 months following receipt thereof) following the loss, and the Insurance date of receipt of such proceeds or (y) such Excess Net Cash Proceeds shall be due and payable solely deemed to have been reinvested in assets used or useful in the Administrative Agent business of any Group Member (on behalf of including pursuant to a Permitted Acquisition, Investment or Capital Expenditure) pursuant to any such investment occurring in the Lenders90 days preceding such date); notwithstanding and
(ii) if all or any portion of such Net Cash Proceeds that are the foregoing, the Administrative Agent shall retain the right subject of clause (i) immediately above is neither reinvested nor contractually committed (or subject to participate (not to the exclusion a letter of the Borrowerintent) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the lossso reinvested within such 18 month period (or is not actually reinvested within such additional six month period, and the Insurance Proceeds if applicable), such unused portion shall be due and payable solely to applied within 15 Business Days after the Administrative Agent (on behalf last day of the Lenders) and deposited such period as a mandatory prepayment as provided in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.this Section 2.10(e);
Appears in 1 contract
Casualty Events. (a) If a Not later than 60 days following the receipt by the Borrower or any of its Subsidiaries of any Net Casualty Event shall occur as to any Project which results in damage Proceeds in excess of $500,0001,000,000 (individually or in the aggregate over the course of a Fiscal Year), the Borrower shall give prompt notice prepay the Loans (and/or provide cover for LC Exposure as specified in Section 2.04(k)), and/or the Commitments shall be subject to automatic reduction, in an amount equal to 100% of such damage to Net Casualty Proceeds; provided that no such prepayment, cover or reduction on account of Net Casualty Proceeds shall be required under this clause if the Borrower informs the Administrative Agent and shall, subject no later than 60 days following the occurrence of the Casualty Event resulting in such Net Casualty Proceeds of its or its Subsidiary's good faith intention to apply such Net Casualty Proceeds to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion rebuilding or replacement of the repair damaged, destroyed or condemned assets or property, or to make a Reinvestment, and restoration in fact uses such Net Casualty Proceeds to rebuild or replace such damaged, destroyed or condemned assets or property, or to make Reinvestments, within 360 days following the receipt of such Project Net Casualty Proceeds, it being understood that the amount of such Net Casualty Proceeds that is not so used within such 360-day period shall be applied at the end of such 360-day period to the prepayment, cover and reduction of Commitments as described above in accordance with Applicable Law tothis clause, as nearly as reasonably possible, such prepayment and/or reduction to be effected in each case in the condition such Project was manner and to the extent specified in immediately prior clause (vi) of this paragraph. Nothing in this paragraph shall be deemed to such Casualty Event, with such alterations as may be reasonably approved limit any obligation of the Borrower or any of its Subsidiaries pursuant to any of the Security Documents to remit to a collateral or similar account maintained by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment any of the Obligations unless required to be made available to Security Documents the Borrower for Restoration hereunderproceeds of insurance, condemnation award or other compensation received in which case such Net Proceeds shall, subject to the provisions respect of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
Appears in 1 contract
Casualty Events. Not later than five (a5) If Business Days following the receipt of any Net Cash Proceeds from a Casualty Event shall occur as to any Project which results in damage in excess of $500,000by the Borrower, the Borrower shall give prompt notice apply an amount equal to 100% of such damage Net Cash Proceeds to make prepayments in accordance with Section 2.08(f); provided that:
(i) so long as no Default shall then exist or arise therefrom, such proceeds shall not be required to be so applied on such date to the extent that the Borrower shall have delivered an Officer’s Certificate to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately on or prior to such date stating that such Net Cash Proceeds are reasonably expected to be used to repair, replace or restore the property that was the subject of such Casualty EventEvent or otherwise reinvested in assets of any Loan Party used or useful in the operations of the Borrower or any of its Subsidiaries, with in either case within 365 days following the date of receipt of such alterations as proceeds (the “Casualty Proceeds Receipt Date”) (which Officer’s Certificate shall set forth the estimates of the proceeds to be so expended), which time frame may be reasonably approved by extended to 545 days following the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) Casualty Proceeds Receipt Date if the Borrower or alteration for which such approval is otherwise required pursuant to Section 8.07. The the applicable Subsidiary or Subsidiaries of the Borrower shall pay all costs of have entered into a binding agreement within such Restoration whether original 365-day time frame to repair, replace or not restore such costs are covered by Insurance Proceeds. The Administrative Agent may, but property or make such reinvestment and such contracted work or reinvestment shall not be obligated to make proof of loss complete within the original 365-day time frame; provided that if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, property subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without constituted Collateral, then all property repaired, replaced or restored or purchased or otherwise acquired with the prior consent Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the perfected Lien (subject only to Permitted Liens) of the Administrative Agent applicable Security Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Sections 5.11 and 5.12;
(ii) if all or any portion of such Net Cash Proceeds shall not be so applied within such 365-day period (or, if applicable, 545-day period), such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.08(f); and
(iii) if at any time that any prepayment pursuant to this Section 2.08(e) would be required, the Borrower is hereby authorized required to collect offer to repurchase or prepay Permitted First Priority Refinancing Debt (or any Refinancing Indebtedness that is secured on a pro rata basis with the Insurance Proceeds with respect Obligations) pursuant to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess terms of the Insurance Threshold Amount documentation governing such Indebtedness with the net proceeds of such Casualty Event (a such Permitted First Priority Refinancing Debt or such Refinancing Indebtedness required to be offered to be so repurchased or prepaid, “Significant Casualty EventOther Applicable Indebtedness”), provided no Event of Default exists, then the Borrower may, with may apply such Net Cash Proceeds on a pro rata basis (determined on the prior written consent basis of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim aggregate outstanding principal amount of the Borrower Loans and agree with Other Applicable Indebtedness at such time) to the insurer(s) on prepayment of the amount Loans and to be paid on the lossrepurchase or prepayment of Other Applicable Indebtedness, and the Insurance Proceeds amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.08(f) shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedsreduced accordingly.
Appears in 1 contract
Samples: Credit Agreement (Five Below, Inc)
Casualty Events. Upon the occurrence of a Casualty Event, the Parties’ rights and remedies in respect of such Casualty Event shall be as follows:
(a) If a Casualty Event The Company shall occur as to any Project which results notify the Buyer promptly in damage in excess writing of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations which notice shall include: (i) a reasonable description of the facts and circumstances surrounding the Casualty Event then known to the Company; (ii) the Company’s preliminary assessment of the effect of the Casualty Event on the applicable assets; (iii) the Company’s preliminary assessment of whether, and the extent to which, any Casualty Losses sustained as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs result of such Restoration whether or not such costs Casualty Event are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by one or more insurance policies; and (iv) the Borrower. All Net Proceeds with respect to a Significant Estimated Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected ProjectLoss.
(b) If Restoration the associated Estimated Casualty Loss (or the Actual Casualty Loss if then known) is equal to or greater than the Casualty Termination Threshold, then either Party shall have the option to terminate this Agreement as provided in Section 10.1(b)(iv).
(c) If the associated Estimated Casualty Loss (or the Actual Casualty Loss if then known) is greater than $1,000,000 (the “De Minimis Casualty Amount”) and the Agreement has not been terminated pursuant to Section 7.7(b), then the KM Member shall, at its option, elect by delivering written notice thereof to the Buyer (such notice, a “Casualty Election Notice”) (i) to repair or replace the assets directly affected by such Casualty Event at the Company’s expense and, subject to Section 7.7(f), adjust downward the Base Purchase Price by 50% of any Project following such Estimated Casualty Loss (or the Actual Casualty Loss if then known), or (ii) repair or replace the assets directly affected by such Casualty Event at the KM Member’s expense and no downward adjustment to the Base Purchase Price shall occur as a result of such Casualty Event. If the KM Member elects to repair or replace any assets affected by a Casualty Event is reasonably expected to cost not more than in accordance with this Section 7.7(c), then the lesser of (i) $5,000,000 KM Member shall promptly commence and (ii) ten percent (10%) of diligently execute the Appraised Value repair and/or replacement of such Project assets with similar grade quality and condition and as required by applicable Law.
(d) If the “Insurance Threshold Amount”), provided no Event of Default exists, associated Estimated Casualty Loss (or the Borrower may, upon notice Actual Casualty Loss if then known) is less than or equal to the Administrative AgentDe Minimis Casualty Amount, settle then the Company shall (and adjust any claim with respect to the KM Member shall cause the Company to) repair, replace or abandon the assets that are the subject of such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, accordance with the prior written consent of the Administrative Agent (which consent Company’s best practices and procedures. The Base Purchase Price shall not be unreasonably withheld)adjusted downward in respect of any Casualty Event for which the Estimated Casualty Loss (or the Actual Casualty Loss if then known) does not exceed the De Minimis Casualty Amount.
(e) For the avoidance of doubt, settle and adjust any claim repair or replacement measures need not be initiated or completed, or be capable of being initiated or completed, prior to Closing for the Borrower and agree with KM Member or the insurer(s) on Company, as the amount case may be, to be paid on avail itself of this Section 7.7; provided, however, that the lossKM Member or the Company, and as the Insurance Proceeds case may be, shall be due and payable solely obligated to repair or replace the assets (to the Administrative Agent extent it has elected to do so in accordance with Section 7.7(c)) as soon as reasonably practicable.
(on behalf f) As promptly as practicable following the occurrence of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any a Casualty Event, the Administrative AgentCompany shall ascertain the Actual Casualty Loss in respect of such Casualty Event. If (x) the Actual Casualty Loss in respect of a Casualty Event differs from the Estimated Casualty Loss in respect of such Casualty Event, (y) an adjustment to the Base Purchase Price pursuant to Section 7.7(c)(i) occurred and (z) the Closing has occurred, then an adjustment payment shall be made as provided in its sole discretionthis Section 7.7(f). Any dispute between the KM Member and Buyer in calculating the Actual Casualty Loss in respect of a Casualty Event shall be resolved by any legally available means, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount subject to be paid on the lossSection 14.8, and the Insurance Proceeds amount determined pursuant to such dispute resolution shall be due and payable solely deemed the Actual Casualty Loss in respect of such Casualty Event. An adjustment payment contemplated by this Section 7.7(f) shall be paid in cash by wire transfer of immediately available funds promptly (but in any event within five Business Days) following determination of the Actual Casualty Loss as follows:
(i) If the Estimated Casualty Loss is greater than the Actual Casualty Loss, then Buyer shall pay to the Administrative Agent (on behalf KM Member an amount in cash equal to 50% of the Lendersamount of such excess.
(ii) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other Estimated Casualty Loss is less than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Actual Casualty EventLoss, then the Borrower KM Member shall immediately endorse, and cause all such third parties to endorse, such check payable pay to the order Company an amount in cash equal to 50% of the Administrative Agentamount of such shortfall. The Borrower hereby irrevocably appoints For the Administrative Agent as its attorney-in-factavoidance of doubt, coupled with an interest, no adjustment pursuant to endorse such check payable to this Section 7.7(f) shall increase or decrease the order KM Member’s or the Buyer’s relative holdings of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsMembership Interests.
Appears in 1 contract
Casualty Events. Following any Casualty Event in which the Casualty Proceeds with respect thereto could reasonably be expected to exceed U.S.$5,000,000, all such Casualty Proceeds payable to or received by the Credit Parties in respect of such Casualty Event shall, if not used to purchase a replacement asset or otherwise reinvested in the business of the Borrower and its Subsidiaries within 180 days of the date of the Casualty Event (aor, if such Casualty Proceeds have not been received by such Credit Party by such 180th day, then on the date such Casualty Proceeds are received), be deposited with the Administrative Agent on the last day of such 180-day period (or, if such Casualty Proceeds have not been received by such Credit Party by such 180th day, then on the date such Casualty Proceeds are received) If as security for the Obligations and the Administrative Agent shall apply the Casualty Proceeds to prepay the Loans, or if the Loans have been repaid in full and only if such Casualty Event shall, or could reasonably be expected to, materially interfere with or otherwise disrupt the operations of the Borrower and its Subsidiaries (taken as a whole), make deposits into the Cash Collateral Account to provide cash collateral for the Letter of Credit Exposure; provided that, in no event shall the Credit Parties be required to deposit any Casualty Proceeds in excess of the amount required to repay the Loans and cash collateralize the Letter of Credit Exposure; provided further that, if such Casualty Proceeds will be reinvested to rebuild or otherwise replace Property damaged by a Casualty Event shall occur as and the cost (or any portion thereof) of such construction or replacement has not been invoiced to any Project which results in damage in excess of $500,000, the Borrower or such Subsidiary as of the date such Casualty Proceeds are received, then the Borrower or such Subsidiary shall give prompt notice of be permitted to, until such damage invoices are received and such amounts are to be paid, deposit such Casualty Proceeds into, and maintain such funds in, a segregated account so long as the Borrower or such Subsidiary shall, concurrently with such deposit, deliver to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion a certificate executed by a Responsible Officer of the repair and restoration Borrower detailing both the proposed use of such Project in accordance Casualty Proceeds and the estimated timing of their application (with Applicable Law to, updated certificates to be sent periodically as nearly as reasonably possible, the condition such Project was in immediately prior necessary to such Casualty Event, with such alterations as may be reasonably approved by update the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect changes to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”timing), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
Appears in 1 contract
Samples: Revolving Credit Agreement (McDermott International Inc)
Casualty Events. Upon the date twelve months following the receipt by the Parent or any of its Subsidiaries (athe date of such receipt being the "RECEIPT DATE") If of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Parent or any of its Subsidiaries, the Parent shall cause the Borrowers to prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (i) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount, if any, equal to 100% (or, from and after the Trigger Date, 75%) of the Net Available Proceeds of such Casualty Event to the extent that all or substantially all of such Net Available Proceeds have not theretofore been applied to the repair or replacement of such Property, such prepayment and reduction to be effected in each case in the manner and to the extent specified in paragraph (h) below. Notwithstanding the foregoing:
(i) the Parent shall cause such prepayment and reduction to occur (x) upon the date 30 days after the Receipt Date (if the Parent or such Subsidiary shall not theretofore have determined to repair or replace the Property affected by such Casualty Event) and (y) upon the date 90 days after the Receipt Date (if the Parent or such Subsidiary shall not theretofore have commenced the repair or replacement of such Property); and
(ii) in the event that a Casualty Event shall occur with respect to Property covered by any Mortgage, the Parent shall cause the Borrowers to prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (i) below), and the Commitments shall be subject to automatic reduction, on the dates, and in the amounts of the required prepayments, specified in such Mortgage. Credit Agreement ---------------- Nothing in this paragraph (c) shall be deemed to limit any obligation of the Parent or any of its Subsidiaries pursuant to any Project which results in damage in excess of $500,000the Security Documents to remit to a collateral or similar account (including, without limitation, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved Collateral Account) maintained by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment any of the Obligations unless required to be made available to Security Documents the Borrower for Restoration hereunderproceeds of insurance, condemnation award or other compensation received in which case such Net Proceeds shall, subject to the provisions respect of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
Appears in 1 contract
Casualty Events. Upon the date 180 days following the receipt --------------- by any Obligor of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Borrower or any of its Subsidiaries (aor upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall have determined not to repair or replace the Property affected by such Casualty Event), the Borrower shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities as provided in paragraph (h) If below), and the Facility A Revolving Credit Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore applied to the repair or replacement of such Property (or to reimburse the Borrower or respective Subsidiary for repairing or replacing such Property), such prepayment and reduction to be applied in accordance with paragraph (e) below. Notwithstanding the foregoing, the Borrower shall not be required to make any prepayment under this Section 2.10(c) unless the Net Available Proceeds of a Casualty Event shall occur as be greater than or equal to $1,000,000. Nothing in this paragraph (c) shall be deemed to limit any obligation of the Borrower or any of its Subsidiaries pursuant to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior Security Documents to such Casualty Event, with such alterations as may be reasonably approved remit to a collateral or similar account maintained by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) any of the Security Documents the proceeds of insurance, condemnation award or alteration for which such approval is otherwise required pursuant other compensation received in respect of any Casualty Event or to Section 8.07. The Borrower shall pay all costs obligate the Administrative Agent to release any of such Restoration whether or not proceeds from such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available account to the Borrower for Restoration hereunderpurposes of repair, in which case such Net Proceeds shall, subject to replacement or reinvestment as aforesaid upon the provisions occurrence and during the continuance of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsDefault.
Appears in 1 contract
Samples: Credit Agreement (Premier Parks Inc)
Casualty Events. (a) If a Upon the date 90 days following the receipt by the Borrower or any of its Subsidiaries of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Credit Agreement Borrower or any of its Subsidiaries (or upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall occur as have determined not to any Project which results in damage in excess of $500,000repair or replace the Property affected by such Casualty Event), the Borrower shall give prompt notice prepay the Loans (and/or provide cover for Letter of such damage to Credit Liabilities as specified in paragraph (g) below), and the Administrative Agent and shall, Commitments shall be subject to the provisions of Section 10.03automatic reduction, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion an aggregate amount, if any, equal to 100% of the repair and restoration Net Available Proceeds of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without not theretofore applied (or committed to be applied pursuant to executed construction contracts or equipment orders) to the prior consent repair or replacement of such Property or to the Administrative Agent and purchase of other Property used or useful in the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount its Subsidiaries, such prepayment and reduction to be paid on effected in each case in the loss, manner and the Insurance Proceeds shall be due and payable solely to the Administrative Agent extent specified in paragraph (on behalf of the Lenders); f) below, provided that, notwithstanding the foregoing, the Administrative Agent Borrower shall retain not be required to make any prepayment or reduce the right Commitments under this paragraph (a) until such time as the aggregate amount of the required prepayments and reductions of Commitments hereunder, after deducting any such amounts previously applied to participate prepayments and reductions pursuant to this paragraph (not a), shall be greater than or equal to $1,000,000. Nothing in this paragraph (a) shall be deemed to limit any obligation of the Borrower and its Subsidiaries pursuant to the exclusion Security Agreement to remit to the Collateral Account the proceeds of the Borrower) insurance, condemnation award or other compensation received in any such insurance settlement at any time. If an Event respect of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf shall release such proceeds to the Borrower in the manner, and to the extent, provided in Section 4.01(d) of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsSecurity Agreement.
Appears in 1 contract
Samples: Credit Agreement (Panavision Inc)
Casualty Events. (a) If Upon the date 60 days following the receipt by the Borrower or any Restricted Subsidiary of the proceeds of insurance, condemnation award or other compensation in respect of a Casualty Event shall occur affecting any property (including any Satellite) of the Borrower or any of its Restricted Subsidiaries that gives rise to Net Cash Proceeds exceeding $5,000,000 (other than Net Cash Proceeds relating to the Satellite commonly referred to as to any Project which results in damage in excess of $500,000"PAS 7"), the Borrower shall give prompt notice prepay the Loans (and/or provide cover for LC Exposure as specified in Section 2.05(k)), and/or the Commitments shall be subject to automatic reduction, in an aggregate amount, if any, equal to the Prepayment Percentage of the Net Cash Proceeds of such damage Casualty Event not theretofore applied to Credit Agreement the Administrative Agent and shallrepair, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and replacement or restoration of such Project property, such prepayment and/or reduction to be effected in accordance with Applicable Law to, as nearly as reasonably possible, each case in the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied manner and to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, extent specified in which case such Net Proceeds shall, subject to the provisions clause (v) of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restorationparagraph. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding Notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to the Net Cash Proceeds of a Casualty Event (including any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(sEvent affecting a Satellite) on the amount that gives rise to be paid on the loss, and the Insurance Proceeds shall be due and payable solely a prepayment pursuant to the Administrative Agent first paragraph of this clause (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Eventi), the Borrower shall immediately endorse, and cause all such third parties not be required to endorse, such check payable prepay Loans and/or reduce Commitments as otherwise provided herein to the order extent that within 360 days of the Administrative Agent. The receipt of the Net Cash Proceeds of the respective Casualty Event the Borrower hereby irrevocably appoints shall Reinvest or commit pursuant to a binding agreement (subject only to customary conditions) to Reinvest such Net Cash Proceeds and shall so notify the Administrative Agent as its attorney-in-factthereof, coupled with an interest, to endorse provided that such check payable to Net Cash Proceeds pending such Reinvestment are held by the order Collateral Trustee in the Shared Collateral Account (if such Net Cash Proceeds arise out of the Administrative Agent. The reasonable out-of-pocket expenses incurred a Casualty Event affecting Shared Property) or by the Administrative Agent in the settlementLender Collateral Account (if such Net Cash Proceeds arise out of a Casualty Event affecting Non-Shared Property) (or, adjustment alternatively, in the case of Net Cash Proceeds arising out of a Casualty Event affecting Non-Shared Property, applied to the prepayment of Revolving Credit Loans) and collection of the Insurance Proceeds shall become part of the Obligations and amounts held in such Account shall be reimbursed subject to release by the Collateral Trustee or, as applicable, the Administrative Agent (which the Administrative Agent hereby agrees to do or to direct the Collateral Trustee to do) so long as at the time of any such requested release either (A) no Default or Event of Default shall have occurred and be continuing or (B) the Required Lenders shall have consented thereto, and such Net Cash Proceeds are required by the Borrower or a Restricted Subsidiary to make progress or other payments in respect of such Reinvestment (and the Borrower shall have so certified to the Collateral Trustee or the Administrative Agent, as applicable). In the event that Net Cash Proceeds from more than one Casualty Event affecting Shared Property or Non-Shared Property, as applicable, are received, such Net Cash Proceeds shall be deemed to be committed to any Reinvestment in the same order in which the Net Cash Proceeds of such Casualty Events affecting Shared Property and Non-Shared Property, as applicable, are received; the Prepayment Percentage of any such Net Cash Proceeds not so applied or committed to such Reinvestment within 360 days shall be forthwith applied to the prepayment of Loans and reduction of Commitments as provided above and, in that connection, the Administrative Agent upon demand agrees to release from the extent not already deducted by Lender Collateral Account (and to direct the Administrative Agent Collateral Trustee to release from the Shared Collateral Account) any such Insurance Net Cash Proceeds in determining Net Proceedsthat are to be so applied.
Appears in 1 contract
Casualty Events. (a) If Not later than five Business Days following the receipt of any Net Cash Proceeds from a Casualty Event shall occur as to by the Borrower or any Project which results in damage in excess of $500,000its Restricted Subsidiaries, the Borrower shall give prompt notice make (or cause to be made) prepayments of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute Term Loans in accordance with Section 8.07 Sections 2.10(g) and this Article X the completion of the repair and restoration (h) in an aggregate principal amount equal to 100% of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Net Cash Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.; provided that
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”subject to Section 2.10(d)(ii), provided and so long as no Default or Event of Default existsshall then exist or would arise therefrom, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to no such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds prepayment shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrowerrequired under this Section 2.10(d) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, unless either (a) the Administrative AgentNet Cash Proceeds of such Casualty Event individually, in its sole discretionor of such Casualty Event together with any series of related Casualty Events, may settle and adjust any claim without exceeds $5,000,000 or (b) the consent Net Cash Proceeds of the Borrower and agree Casualty Events, together with the insurer(sNet Cash Proceeds of Asset Sales, during the term of this Agreement, exceeds $20,000,000; and
(ii) on so long as the amount to be paid on the loss, ABL Facility is outstanding and the Insurance Proceeds ABL Intercreditor Agreement is in effect, no such prepayment shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds required with respect to the portion of such Net Cash Proceeds of any Casualty Event relating to Collateral other than, subject to the ABL Intercreditor Agreement, in respect of Fixed Asset Agent Priority Collateral and a Significant portion of the Pari Passu Collateral provided for in the ABL Intercreditor Agreement; provided, that the Borrower shall, in the case of a Casualty Event in respect of ABL Lender Priority Collateral and a portion of the Pari Passu Collateral provided for in the ABL Intercreditor Agreement, to the extent required by the ABL Facility, prepay Indebtedness under the ABL Facility or, to the extent permitted by the ABL Facility, any other Indebtedness secured by Liens ranking senior to the Liens securing the Indebtedness hereunder on such ABL Lender Priority Collateral or Pari Passu Collateral or otherwise in accordance with the ABL Intercreditor Agreement; and
(iii) so long as no Default or Event of Default shall then exist or would arise therefrom, such proceeds shall not be required to be so applied on such date to the extent that such Net Cash Proceeds are, within 12 months following the date of such Casualty Event, reinvested in replacement assets, other assets used or useful in a Permitted Business, or in Capital Expenditures, Permitted Acquisitions or Investments permitted by Section 6.03 (other than Section 6.03(b)) hereunder, or contractually committed to be so reinvested within 18 months following the Borrower shall immediately endorsedate of such Casualty Event; provided that if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period or, and cause all with respect to which any contractual commitment with respect to which such third parties Net Cash Proceeds was entered into during the period ending 18 months after the end of such initial 12-month period (or such longer period as is required to endorsecomplete the repair or reconstruction commenced during such 18-month period), such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and unused portion shall be reimbursed by applied on the Borrower to the Administrative Agent upon demand last day of such period as a mandatory prepayment as provided in this Section 2.10(d); provided, further, that to the extent not already deducted by that the Administrative Agent from property subject to such Insurance Casualty Event constituted Collateral, then all property purchased with the Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the Lien of the applicable Security Documents in determining Net Proceedsfavor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Section 5.12.
Appears in 1 contract
Casualty Events. (a) If a Upon the date 270 days following the receipt by the Borrower of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Borrower or any of its Subsidiaries (or upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall occur as have determined not to any Project which results in damage in excess of $500,000repair or replace the Property affected by such Casualty Event), the Borrower shall give prompt notice prepay the Loans in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or Event not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be theretofore applied to the payment repair or replacement of the Obligations unless required such Property, such prepayment to be made available effected in each case in the manner and to the Borrower for Restoration hereunder, extent specified in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
clause (bvii) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”)below, provided no Event of Default existsthat, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Borrower shall not be required to make a prepayment under this clause (i) to the extent that
(A) the Borrower advises the Administrative Agent shall retain at the right time of receipt thereof that it intends to participate (not to reinvest such Net Available Proceeds into the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent business of the Borrower and agree with its Subsidiaries,
(B) such Net Available Proceeds are held by the insurer(sBorrower in a segregated investment or other account (or, alternatively, applied to the prepayment of Revolving Loans), until so used to make such reinvestment as contemplated above, and
(C) on such Net Available Proceeds are in fact so applied to such reinvestment within 270 days of receipt thereof (it being understood that, in the amount event Net Available Proceeds from more than one Casualty Event are held by the Borrower, or have been applied to be paid on the lossprepayment of Revolving Loans, and the Insurance such Net Available Proceeds shall be due and payable solely deemed to be utilized in the same order in which such Dispositions occurred and, accordingly, any such Net Available Proceeds so held or applied to the prepayment of Revolving Loans for more than 270 days shall be forthwith applied to the prepayment of Loans as provided above), it being understood that, if the Borrower does not so advise the Administrative Agent (on behalf of that it intends to use such Net Available Proceeds to make such reinvestment as provided above, or does not in fact apply such Net Available Proceeds to reinvestments within the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Eventtime periods specified above, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable prepay the Loans in an amount equal to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedsamount specified above.
Appears in 1 contract
Casualty Events. Not later than 60 days following the receipt by the Company or any of its Subsidiaries (aother than a Supplemental Guarantor) If of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Company or any of its Subsidiaries (other than Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans under the Supplemental Credit Agreement) (or upon such earlier date as the Person owning such Property shall have determined not to repair or replace the Property affected by such Casualty Event), the Company shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (h) below), and the Facility A Commitments shall be subject to automatic reduction, in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore applied to the repair or replacement of such Property or prepayment of the Facility B Loans, such prepayment and reduction to be effected in each such case in the manner and to the extent specified in paragraph (f) below. Nothing in this paragraph (b) shall be deemed to limit any obligation of the Company or any of its Subsidiaries pursuant to any of the Security Documents to remit to a collateral or similar account (including, without limitation, the Collateral Account) maintained by the Agent pursuant to any of the Security Documents the proceeds of insurance, condemnation award or other compensation received in respect of any Casualty Event. Notwithstanding the foregoing, in the event that a Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to Property of the Company or any of its Subsidiaries (other than Property of a Significant Casualty EventSupplemental Guarantor or acquired with the proceeds of Facility C Loans under the Supplemental Credit Agreement) and covered by any Mortgage, shall, at the Administrative Agent’s option, be applied Company shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities) on the dates and in the amounts to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, extent specified in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practiceMortgage. In the event that Restoration of any Project is reasonably expected to cost an amount equal to a Casualty Event involving Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans under the Supplemental Credit Agreement, the Net Available Proceeds of such Casualty Event shall be applied in excess accordance with the terms of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsSupplemental Credit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Suiza Foods Corp)
Casualty Events. Upon the date twelve months following the receipt by the Parent or any of its Subsidiaries (athe date of such receipt being the "RECEIPT DATE") If of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Parent or any of its Subsidiaries, the Parent shall cause the Borrowers to prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (k) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount, if any, equal to 100% (or, from and after the General Trigger Date, 75%) of the Net Available Proceeds of such Casualty Event to the extent that all or substantially all of such Net Available Proceeds have not theretofore been applied to the repair or replacement of such Property, such prepayment and reduction to be effected in each case in the manner and to the extent specified in paragraph (j) below. Notwithstanding the foregoing:
(i) the Parent shall cause such prepayment and reduction to occur (x) upon the date 30 days after the Receipt Date (if the Parent or such Subsidiary shall not theretofore have determined to repair or replace the Property affected by such Casualty Event) and (y) upon the date 90 days after the Receipt Date (if the Parent or such Subsidiary shall not theretofore have commenced the repair or replacement of such Property); and
(ii) in the event that a Casualty Event shall occur as with respect to Property covered by any Project which results in damage in excess of $500,000Mortgage, the Borrower Parent shall give prompt notice cause the Borrowers to prepay the Loans (and/or provide cover for Letter of such damage to Credit Liabilities as specified in paragraph (k) below), and the Administrative Agent and shall, Commitments shall be subject to automatic reduction, on the provisions of Section 10.03dates, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion amounts of the repair and restoration required prepayments, specified in such Mortgage. Nothing in this paragraph (c) shall be deemed to limit any obligation of such Project in accordance with Applicable Law tothe Parent or any of its Subsidiaries pursuant to CREDIT AGREEMENT any of the Security Documents to remit to a collateral or similar account (including, as nearly as reasonably possiblewithout limitation, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved Collateral Accounts) maintained by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment any of the Obligations unless required to be made available to Security Documents the Borrower for Restoration hereunderproceeds of insurance, condemnation award or other compensation received in which case such Net Proceeds shall, subject to the provisions respect of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
Appears in 1 contract
Casualty Events. (a) If a Casualty Event shall occur as to On the date of receipt by the Borrower or any Project which results in damage Subsidiary of Net Available Proceeds in excess of $500,000100,000 of any insurance, condemnation award or other compensation in respect of any Casualty Event (excluding Net Available Proceeds from (x) business interruption coverage or (y) other insurance coverage unrelated to the repair and/or replacement of the damaged assets) the Borrower shall give prompt notice of or such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law toSubsidiary, as nearly the case may be, shall deposit such Net Available Proceeds into the Collateral Account (under and as reasonably possible, defined in the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07Security Agreement). The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly Upon request by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain (unless a Default shall have occurred and be continuing) release the right to participate (not Net Available Proceeds to the exclusion Borrower in an amount not exceeding the amount required for repair or replacement of the Borrower) in any property for which such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount Net Available Proceeds were received; provided that if such Net Available Proceeds have not been released or committed to be paid on the loss, expended in respect of such repair or replacement in an amount and the Insurance Proceeds shall be due and payable solely manner reasonably acceptable to the Administrative Agent (on behalf within 180 days of receipt by the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If Borrower or such Subsidiary, as the case may be, such Net Available Proceeds, to the extent that such Net Available Proceeds, together with all other Net Available Proceeds received by the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with Subsidiary in respect of Casualty Events, not released or committed to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order be expended in respect of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order repair or replacement within 180 days of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed receipt by the Borrower or any Subsidiary exceeds $500,000, shall be used to prepay the Loans (and/or provide cover for LC Exposure as specified in Section 2.04(i)) and automatically reduce the Revolving Credit Commitments in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore applied to the Administrative Agent upon demand repair or replacement of such property (such prepayment and reduction to be effected in each case in the manner and to the extent not already deducted by the Administrative Agent from such Insurance Proceeds specified in determining Net Proceedsclause (vi) of this Section 2.09).
Appears in 1 contract
Samples: Credit Agreement (Nl Industries Inc)
Casualty Events. (a) If a any Casualty Event shall occur as to any Project which results in damage in excess of $500,000have occurred, the Borrower shall give prompt notice Company shall, within five Business Days after Casualty Proceeds in respect of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion Casualty Event are received by or on behalf of the repair and restoration of such Project Company or any Subsidiary, deliver a notice in accordance with Applicable Law to, as nearly as reasonably possible, writing (the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a "Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(bReduction Notice") If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle which notice shall (x) state that the Company intends to reduce the Commitments in the amount of such Casualty Proceeds, (y) state the amount thereof and adjust any claim (z) contain an offer to reduce the Commitments of each LC Participant in an amount equal to such LC Participant's Pro Rata Share of such Casualty Proceeds on a specified date (the "Casualty Event Reduction Date"), which shall be the Business Day that is 20 Business Days after the date of the Casualty Event Reduction Notice; provided that no such Commitment reduction shall be required if the aggregate Casualty Proceeds with respect to such Casualty Event without the prior consent does not exceed $5,000,000. The Administrative Agent shall promptly notify each LC Participant of the Administrative Agent contents of the Casualty Event Reduction Notice and of such LC Participant's Pro Rata Share of the Casualty Proceeds. Any LC Participant may deliver, not less than three Business Days prior to the proposed Casualty Event Reduction Date, a written notice rejecting the offer set forth in the Casualty Event Reduction Notice (each LC Participant delivering such notice, a "Casualty Event Declining LC Participant" and each other LC Participant, a "Casualty Event Accepting LC Participant"). On the Casualty Event Reduction Date, the Commitments of each Casualty Event Accepting LC Participant shall be reduced, ratably in an aggregate amount equal to such Casualty Event Accepting LC Participant's Pro Rata Share of the Casualty Proceeds (and the Borrower is hereby authorized Company shall use such Casualty Proceeds to collect make any payments required to be made pursuant to Section 2.5(b) and 2.8(d)), and each Casualty Event Declining LC Participant's Pro Rata Share of the Insurance Casualty Proceeds shall be retained by the Company. Notwithstanding the foregoing, if within five Business Days after Casualty Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to Casualty Event are received by or in excess on behalf of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default existsCompany or any Subsidiary, the Borrower may, with the prior written consent of the Administrative Agent (which consent Company shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely deliver to the Administrative Agent (on behalf a certificate of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not a Responsible Officer to the exclusion effect that (i) the Company and its Subsidiaries intend to apply the Casualty Proceeds (or a portion thereof specified in such certificate), within 90 days after the receipt of such Casualty Proceeds to repair, restore or replace the Borrower) in any such insurance settlement at any time. If an Event of Default exists, Mortgaged Vessel with respect to any which such Casualty EventProceeds were received and (ii) no Default has occurred and is continuing, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount then no Casualty Event Reduction Notice will be required to be paid on delivered and no Commitment reduction will be required pursuant to this Section 2.8(b)(i) in respect of such Casualty Proceeds (or the lossportion of such Casualty Proceeds specified in such certificate, if applicable) except that, if any such Casualty Proceeds have not been so applied by the end of such 90-day period, a Casualty Event Reduction Notice will be required to be delivered, and a Commitment reduction will be required to be made, by the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed Company in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedsthis Section 2.8(b)(i).
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (McDermott International Inc)
Casualty Events. (a) If a Casualty Event shall occur as to any Project which results in damage in excess The Borrower will, and will cause each of $500,000its Subsidiaries to, the Borrower shall give prompt notice of such damage furnish to the Administrative Agent and shall, subject to the provisions prompt written notice of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a each Casualty Event that is not a Significant Casualty Event shall, subject to or the provisions commencement of this Agreement, be made available to any action or proceeding for the Borrower to pay the costs incurred in connection with the Restoration condemnation or other taking of the affected Projectany such property or any part thereof or interest therein under power of eminent domain or by condemnation or similar proceeding.
(b) If Restoration of any Project following a Casualty Event results in Net Cash Proceeds (whether in the form of insurance proceeds, condemnation award or otherwise), the Administrative Agent is reasonably expected authorized to cost not more than collect such Net Cash Proceeds and, if received by any Loan Party or any of its Subsidiaries, shall be held in trust for the lesser of (i) $5,000,000 and (ii) ten percent (10%) benefit of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice Administrative Agent hereunder and shall be forthwith paid over to the Administrative Agent, settle and adjust provided that (i) to the extent that any claim with respect Loan Party or any of its Subsidiaries intends to use any such Casualty Event without Net Cash Proceeds to repair, restore, reinvest or replace assets of the prior consent Borrower or any of its Subsidiaries as provided in the definition of Net Cash Proceeds, the Administrative Agent shall, subject to the terms and conditions of such proviso, deliver such Net Cash Proceeds to the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess on behalf of the Insurance Threshold Amount applicable Loan Party, (ii) otherwise, the Administrative Agent shall, and each Loan Party hereby authorizes the Administrative Agent to, apply such Net Cash Proceeds to prepay the Loans in accordance with Section 2.7 and (iii) all proceeds of business interruption insurance shall be paid over to the Borrower unless a “Significant Casualty Event”), provided no Default or an Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent has occurred and is continuing.
(which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(sc) on the amount to be All proceeds received by or paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (that do not constitute Net Cash Proceeds shall be paid over to the Borrower on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an applicable Loan Party unless a Default or Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle has occurred and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedscontinuing.
Appears in 1 contract
Casualty Events. Not later than 60 days following the receipt by the Company or any of its Subsidiaries (other than a Supplemental Guarantor) of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Company or any of its Subsidiaries (other than Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement) (or upon such earlier date as the Person owning such Property shall have determined not to repair or replace the Property affected by such Casualty Event), the Company shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (f) below), and the Facility A Commitments shall be subject to automatic reduction, in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore applied to the repair or replacement of such Property or prepayment of the Facility B CREDIT AGREEMENT Loans, such prepayment and reduction to be effected in each such case in the manner and to the extent specified in paragraph (e) below. Nothing in this paragraph (a) If shall be deemed to limit any obligation of the Company or any of its Subsidiaries pursuant to any of the Security Documents to remit to a collateral or similar account (including, without limitation, the Collateral Account) maintained by the Agent pursuant to any of the Security Documents the proceeds of insurance, condemnation award or other compensation received in respect of any Casualty Event. Notwithstanding the foregoing, in the event that a Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to Property of the Company or any of its Subsidiaries (other than Property of a Significant Casualty EventSupplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement) and covered by any Mortgage, shall, at the Administrative Agent’s option, be applied Company shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities) on the dates and in the amounts to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, extent specified in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practiceMortgage. In the event that Restoration of any Project is reasonably expected to cost an amount equal to a Casualty Event involving Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement, the Net Available Proceeds of such Casualty Event shall be applied in excess accordance with the terms of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsSecond Restated Supplemental Credit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Suiza Foods Corp)
Casualty Events. Upon the date 180 days following the receipt by any Obligor of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of the Borrower or any of its Subsidiaries (aor upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall have determined not to repair or replace the Property affected by such Casualty Event), the Borrower shall prepay the Facility A and Facility B Term Loans, and the Facility A and Facility B Commitments shall be subject to automatic reduction, in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore applied to the repair or replacement of such Property (or to reimburse the Borrower or respective Subsidiary for repairing or replacing such Property), such prepayment and reduction to be effected as follows: first, to the prepayment of the Sub-Series of Term Loans (if any) If secured by the respective Property that was the subject of such Casualty Event, to the installments of such Sub-Series in the inverse order of maturity; and second, after the prepayment in full of such Sub-Series (or, in the event such Property was not collateral security for any of the Term Loans), to the prepayment of the Facility A and Facility B Term Loans ratably in accordance with the respective then-outstanding aggregate principal amounts thereof (and, to the extent such prepayment shall exceed the then outstanding aggregate principal amount of the Term Loans and shall occur prior to the Term Loan Commitment Termination Date, the Facility A and Facility B Term Loan Commitments shall be concurrently reduced in an Credit Agreement amount equal to the respective amounts of such required prepayments in respect of such Loans), each such prepayment of the Term Loans of any Class being applied ratably to each Sub-Series of the Loans of such Class in accordance with the respective then-outstanding aggregate amounts of such Sub- Series, and to the installments thereof in the inverse order of maturity. Notwithstanding the foregoing, the Borrower shall not be required to make any prepayment under this Section 2.10(c) unless the Net Available Proceeds of a Casualty Event shall occur as be greater than or equal to $100,000. Nothing in this paragraph (c) shall be deemed to limit any obligation of the Borrower or any of its Subsidiaries pursuant to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior Security Documents to such Casualty Event, with such alterations as may be reasonably approved remit to a collateral or similar account maintained by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) any of the Security Documents the proceeds of insurance, condemnation award or alteration for which such approval is otherwise required pursuant other compensation received in respect of any Casualty Event or to Section 8.07. The Borrower shall pay all costs obligate the Administrative Agent to release any of such Restoration whether or not proceeds from such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available account to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to purposes of reinvestment as aforesaid upon the provisions occurrence and during the continuance of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsDefault.
Appears in 1 contract
Samples: Credit Agreement (Premier Parks Inc)
Casualty Events. Not later than 60 days following the receipt by the Company or any of its Subsidiaries of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event affecting any Property of any Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans hereunder (or upon such earlier date as the Person owning such Property shall have determined not to repair or replace the Property affected by such Casualty Event), the Company shall prepay the Facility C Loans or Facility D Loans, as the case may be, in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore applied to the repair or replacement of such Property, such prepayments to be effected in each such case in the manner and to the extent specified in paragraph (e). In the event that such Net Available Proceeds exceed the outstanding amount of the Facility C Loans or Facility D Loans, such excess shall be applied to the prepayment of the Facility B Loans in accordance with the terms of the Existing Credit Agreement. Nothing in this paragraph (a) If shall be deemed to limit any obligation of the Company or any of its Subsidiaries pursuant to any of the Security Documents to remit to a collateral or similar account (including, without limitation, the Collateral Account) maintained by the Agent pursuant to any of the Security Documents the proceeds of insurance, condemnation award or other compensation received in respect of any Casualty Event. Notwithstanding the foregoing, in the event that a Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to Property of a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection Supplemental Guarantor or acquired with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions proceeds of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of Facility C Loans or Facility D Loans hereunder and covered by any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default existsMortgage, the Borrower may, upon notice to Company shall prepay the Administrative Agent, settle Facility C Loans or the Facility D Loans on the dates and adjust any claim with respect to in the amounts specified in such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practiceMortgage. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or a Casualty Event involving Property not covered by this Section 2.09(a), the Net Available Proceeds of such Casualty Event shall be applied in excess accordance with the terms of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsExisting Credit Agreement.
Appears in 1 contract
Casualty Events. (a) If a Casualty Event shall occur as to any Project which results in damage in excess portion of $500,000, the Borrower shall give prompt notice of such damage an Acquired Hotel is damaged by fire or other casualty prior to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent Closing (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without Acquired Hotel, a “casualty event”) and such Acquired Hotel shall not be deemed an Excluded Asset pursuant to Section 6.18, then (i) at the prior consent Closing or, in the case of a Deferred Asset, at the Administrative Agent applicable closing date under Section 6.18, (A) the applicable Acquired Entity or Directly Acquired Assets Owner shall receive the aggregate insurance proceeds then collected or received by Sun and the Borrower is hereby authorized to collect the Insurance Proceeds Sun Subsidiaries with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In casualty event, less the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”)actual and reasonable unreimbursed, provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by Sun and the Administrative Agent Sun Subsidiaries in connection with collecting such proceeds and making any repairs to such Acquired Hotel occasioned by such casualty event pursuant to any Contract approved by Horizon OP, such approval not to be unreasonably withheld, conditioned or delayed (except no such approval shall be necessary to repair or restore any emergency or hazardous condition) or as required by any applicable third party Contract in existence prior to the settlementdate of such casualty event (“net casualty insurance proceeds”), adjustment (B) Sun shall, and collection shall cause the applicable Sun Subsidiaries to, assign its rights to all then unpaid net casualty insurance proceeds with respect to such casualty event to the applicable Acquired Entity or Directly Acquired Assets Owner and (C) the applicable Acquired Entity or Directly Acquired Assets Owner shall receive a credit for the sum of (1) the amount of any deductible under applicable insurance policies and (2) the amount of any casualty that is uninsured or by which the cost of repair exceeds the coverage limitations of the Insurance Proceeds applicable insurance policies; provided that, such credit does not exceed the amount by which the Acquired Hotel Agreed Amount for such Acquired Hotel exceeds the net casualty insurance proceeds received with respect to such casualty event and (ii) Sun and the other Sun Parties shall become part not adjust or settle any insurance claim with respect to such casualty event without the prior written consent of the Obligations Horizon OP, which consent shall not be unreasonably withheld, conditioned or delayed, and Horizon OP shall be reimbursed by the Borrower entitled to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from participate in all negotiations with third parties in respect of any such Insurance Proceeds in determining Net Proceedsadjustment or settlement.
Appears in 1 contract
Samples: Master Agreement and Plan of Merger (Starwood Hotel & Resorts Worldwide Inc)
Casualty Events. (a) If a any Casualty Event shall occur as to any Project which results in damage in excess of $500,000occur, the Borrower shall give prompt (a) promptly upon discovery or receipt of notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds thereof provide written notice with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a any Casualty Event that the restoration cost of which is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably good faith expected to cost not more than the lesser of (i) exceed $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice 2,500,000 to the Administrative Agent, settle and adjust any claim with (b) diligently pursue (or cause the applicable Loan Party to pursue diligently) (whether by legal or administrative action, negotiation, mediation, arbitration or settlement) on a commercially reasonable basis all its rights to compensation against all relevant insurers, reinsurers, Project Document counterparties and/or Governmental Authorities, as applicable, in respect to of such Casualty Event without to the prior consent of the Administrative Agent and extent that the Borrower (or any other Loan Party) has a reasonable basis for a claim for compensation or reimbursement (that in the Borrower’s reasonable opinion is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”sufficiently collectible), provided no Event of Default existsincluding, the Borrower maywithout limitation, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust under any claim of the Borrower and agree with the insurer(s) on the amount insurance policy required to be paid on maintained hereunder or under the loss, Collateral Agreement. All amounts and the Insurance Proceeds shall be due and payable solely to the Administrative Agent proceeds (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrowerincluding instruments providing for future payment) in any such insurance settlement at any time. If an Event respect of Default exists, with respect to any Casualty Event, including the Administrative proceeds of any insurance policy required to be maintained by any Loan Party hereunder or under the Collateral Agreement, net of costs and expenses in obtaining such amounts and taxes relating thereto (such net amount, collectively, the “Loss Proceeds”), in respect of any such Casualty Event received prior to the Substantial Completion Date, shall be deposited in a deposit account subject to Section 2.4 (it being understood that such account shall be treated as a Construction Disbursement Account for purposes of Section 2.4). The Borrower shall use commercially reasonable efforts to provide that the insurers, reinsurers, counterparties, Governmental Authorities or other payors of such Loss Proceeds pay all such Loss Proceeds directly into such account. If any such Loss Proceeds are paid directly to the Borrower, any Subsidiary of the Borrower, or the Agents, (i) such Loss Proceeds shall be received in trust for the Collateral Agent, in its sole discretion, may settle and adjust any claim without the consent (ii) such Loss Proceeds shall be segregated from other funds of the Borrower and agree with the insurer(s) on the amount to be paid on the lossor such other Person, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lendersiii) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party such other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty EventPerson shall deposit (or, if applicable, the Borrower shall immediately endorse, and cause all such third parties of its Subsidiaries to endorse, deposit) such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent Loss Proceeds in the settlement, adjustment and collection of the Insurance same form as received (with any necessary endorsement) in accordance with this Section 6.9. Any such Loss Proceeds shall become part of be applied in the Obligations manner required by and shall be reimbursed by in compliance with the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsCredit Agreement.
Appears in 1 contract
Casualty Events. (a) If a Casualty Event shall occur as to any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration the Net Available Proceeds received after the date hereof in respect of any Project is reasonably expected to cost an amount equal to or in excess of Casualty Event (herein, the Insurance Threshold Amount (a “Significant Current Casualty Event”), provided no Event and of Default existsall prior Casualty Events, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, each case with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other of the Non-Project Subsidiaries, as to which a prepayment has not yet been made under this clause (b) (unless such proceeds are the subject of a notice heretofore given pursuant to clause (i) immediately below and the 180-day period applicable thereto pursuant to clause (ii) immediately below shall not have lapsed or such proceeds shall have been applied as provided in such clause (ii)) shall exceed US$1 million, then, no later than 10 Business Days after receipt by the Administrative Agent is a payee on any check representing Insurance Borrower (or the applicable Non-Project Subsidiary) of such Net Available Proceeds with in respect to a Significant of the Current Casualty Event, the Borrower shall immediately endorseprepay the Advances (other than the Revolving Advances) and reduce the Revolving Commitment in an aggregate amount of such excess; provided that, and cause all such third parties to endorsenotwithstanding the foregoing, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower shall not be required to the Administrative Agent upon demand make a prepayment under this clause (b) to the extent not already deducted by that:
(i) the Administrative Borrower advises the Collateral Agent from (with a copy to each Facility Agent) at the time of the relevant Casualty Event that it intends to reinvest, or cause the applicable Restricted Subsidiary, as the case may be, to reinvest, such Insurance Net Available Proceeds into, in determining the case of the Borrower and the Restricted Subsidiaries (other than Mossel), the business of the Borrower and the Restricted Subsidiaries and in the case of Mossel, into the business of Mossel, and
(ii) such Net Available Proceeds are in fact so applied as a reinvestment within 180 days of the receipt of such Net Available Proceeds. Nothing in this paragraph shall be deemed to limit any obligation of the Borrower or any of the Restricted Subsidiaries pursuant to any of the Security Documents to remit to a collateral or similar account maintained pursuant to any of the Security Documents the proceeds of any insurance, condemnation award or other compensation received in respect of any Casualty Event.
Appears in 1 contract
Samples: Common Agreement (Digicel Group LTD)
Casualty Events. The Borrower will, and will cause each Loan Party and its Subsidiaries to, furnish to the Credit Parties prompt written notice of each Casualty Event or other insured damage to any portion of any property owned or held by or on behalf of any Loan Party or any of its Subsidiaries or the commencement of any action or proceeding for the condemnation or other taking of any such property or any part thereof or interest therein under power of eminent domain or by condemnation or similar proceeding.
(a) If a any Casualty Event shall occur as to any Project which results in damage Net Cash Proceeds (whether in excess the form of $500,000insurance proceeds, condemnation award or otherwise), the Borrower Administrative Agent is authorized to collect such Net Cash Proceeds and, if received by any Loan Party or any of its Subsidiaries, such Net Cash Proceeds shall give prompt notice not be commingled with any of such damage its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Administrative Agent hereunder and shall be forthwith paid over to the Administrative Agent, provided that (i) to the extent that any Loan Party or any of its Subsidiaries intends to use any such Net Cash Proceeds to repair, restore, reinvest or replace assets of any Loan Party or any of its Subsidiaries as provided in the definition of Net Cash Proceeds, the Administrative Agent and shall, subject to the terms and conditions of such proviso, deliver such Net Cash Proceeds to the Borrower on behalf of the applicable Loan Party, (ii) otherwise, subject to the reinvestment provisions set forth in the definition of Section 10.03Net Cash Proceeds, promptly commence the Administrative Agent shall, and diligently prosecute each Loan Party hereby authorizes the Administrative Agent to, apply such Net Cash Proceeds to prepay the Loans in accordance with Section 8.07 2.7 and this Article X the completion (iii) all proceeds of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may business interruption insurance shall be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available paid over to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions unless an Event of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that Default has occurred and is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Projectcontinuing.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to All proceeds received by or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (that do not constitute Net Cash Proceeds shall be paid over to the Borrower on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If applicable Loan Party unless an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle has occurred and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedscontinuing.
Appears in 1 contract
Samples: Credit Agreement
Casualty Events. Not later than ten (a10) If Business Days following the receipt of any Net Cash Proceeds from a Casualty Event shall occur as to by any Project which results in damage in excess of $500,000Group Member, the Borrower shall give prompt notice apply an amount equal to 100% of such damage Net Cash Proceeds to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute make prepayments in accordance with Section 8.07 2.10(h) and this Article X (i); provided that
(i) such Net Cash Proceeds shall not be required to be so applied on such date to the completion extent that (A) such Net Cash Proceeds shall be less than $1,250,000 per Casualty Event or an aggregate amount of Net Cash Proceeds from all such Casualty Events, together with Assets Sales, shall be less than $5,500,000 in any twelve month period (the repair and restoration of “Casualty Event Threshold”), or (B) in the event that such Project in accordance with Applicable Law to, as nearly as reasonably possibleNet Cash Proceeds exceed the Casualty Event Threshold, the condition such Project was in immediately Borrower shall have notified the Administrative Agent on or prior to such date stating that such proceeds in excess of the Casualty EventEvent Threshold are expected (x) to be used to repair, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for replace or restore any Restoration for Property in respect of which such approval is Net Cash Proceeds were paid or to reinvest in other fixed or Capital Assets or assets that are otherwise required used or useful in the business of the Group Members (including pursuant to Section 10.03(ea Permitted Acquisition, investment or Capital Expenditure), or (y) to be contractually committed to be so reinvested, in each case, no later than 12 months (or alteration for which within 18 months following receipt thereof if such approval is otherwise required pursuant contractual commitment to Section 8.07. The Borrower shall pay all costs reinvest has been entered into within 12 months following receipt thereof) following the date of receipt of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss proceeds; provided that if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, Property subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without constituted Collateral, then all Property purchased or otherwise acquired with the prior consent Excess Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the first priority perfected Lien (subject to Permitted Liens) of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out applicable Security Documents in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess favor of the Insurance Threshold Amount Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Section 5.10 and 5.11; and
(a “Significant Casualty Event”ii) if all or any portion of such Net Cash Proceeds that are subject to clause (i) immediately above is neither reinvested nor contractually committed to be so reinvested within such 12 month period (and actually reinvested within 18 months of the receipt of the Net Cash Proceeds related thereto), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds such unused portion shall be due and payable solely to applied within ten (10) Business Days after the Administrative Agent (on behalf last day of the Lenderssuch period as a mandatory prepayment as provided in this Section 2.10(e); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
Appears in 1 contract
Casualty Events. (a) If a Promptly but in any event not later than the third Business Day following the receipt by the Issuer or any Restricted Subsidiary of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event shall occur as to affecting any Project which results in damage in excess property of $500,000the Issuer or any Restricted Subsidiary after the date hereof, the Borrower Commitments shall give prompt notice be subject to automatic reduction or the Issuer shall redeem the Notes, as applicable, in an aggregate amount equal to the Net Available Proceeds of such damage Casualty Event; PROVIDED that no reduction of Commitments or redemption of Notes shall be required pursuant to this clause (ii) to the extent such Net Available Proceeds are reinvested in the repair, restoration or replacement of such property or invested in Telecommunications Assets to be acquired by the Issuer or any of its Restricted Subsidiaries within 360 days of the date of such receipt (and, pending such reinvestment, such Net Available Proceeds are either (x) deposited with the Administrative Agent and shall, subject held as collateral for the obligations of the Obligors hereunder (PROVIDED that nothing herein shall be deemed to require the Administrative Agent to release any such proceeds after the occurrence and during the continuance of an Event of Default) or (y) applied by the Issuer to the provisions redemption of Section 10.03, promptly commence and diligently prosecute Notes hereunder (in accordance with Section 8.07 and this Article X which event the completion Issuer agrees to advise the Administrative Agent in writing at the time of such redemption of Notes that such redemption is being made from the proceeds of a Casualty Event). Nothing in the immediately preceding sentence shall be deemed to limit any obligation of the repair Issuer or any of its Restricted Subsidiaries pursuant to any of the Senior Security Documents to remit to a collateral or similar account (including the "Collateral Accounts" under and restoration of such Project as defined in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved Senior Security Documents) maintained by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment any of the Obligations unless required to be made available to Senior Security Documents the Borrower for Restoration hereunderproceeds of insurance, condemnation award or other compensation received in which case such Net Proceeds shall, subject to the provisions respect of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
Appears in 1 contract
Samples: Note and Guarantee Agreement (Metromedia Fiber Network Inc)
Casualty Events. (a) If a After the occurrence of any Casualty Event shall occur as (other than any Casualty Event with respect only to any Project which results Property covered by the Mortgages) resulting in damage a loss in excess of $500,000, the Borrower Company shall give prompt notice of such damage thereof to the Administrative Agent and shallthe Lenders. If no Default has occurred and is continuing, subject the Company may, at its option, to be exercised by delivery of notice to the provisions Administrative Agent and the Lenders within four months of Section 10.03such Casualty Event, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X elect to apply the completion Net Available Proceeds of such Casualty Event to either (i) the repair or replacement of the Property affected thereby or (ii) the prepayment of Credit Agreement the Loans (and/or the provision of cover for Letter of Credit Liabilities as specified in paragraph (g) of this Section 2.10) in the manner and to the extent specified in paragraph (f) of this Section 2.10. If a Default has occurred and is continuing, or if the Company fails to make such an election within four months from the date of any such Casualty Event, such Net Available Proceeds shall automatically be applied to the prepayment of the Loans in the manner and to the extent specified in paragraph (f) of this Section 2.10 (and/or the provision of cover for Letter of Credit Liabilities as specified in paragraph (g) of this Section 2.10). If the Company elects to so repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, or replace the condition such Project was in immediately prior Property subject to such Casualty Event, with the Net Available Proceeds of such alterations as may Casualty Event in excess of $500,000 shall be reasonably approved held by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available such repair or replacement and advanced to the Borrower for Restoration hereunder, Company in which case periodic installments upon compliance by the Company with such Net Proceeds shall, subject to the provisions of this Agreement, reasonable conditions as may be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to imposed by the Administrative Agent, settle including, but not limited to, reasonable retentions and adjust lien releases. Interest, if any, actually earned on any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Net Available Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, held by the Administrative Agent shall retain be credited to such Net Available Proceeds, for the right to participate (not to the exclusion benefit of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net ProceedsCompany.
Appears in 1 contract
Casualty Events. (a) If Not later than five Business Days following the receipt of any Net Cash Proceeds from a Casualty Event shall occur as to by any Project which results in damage in excess of $500,000Company, the Revolving Commitments shall be permanently reduced by an amount equal to 100% of such Net Cash Proceeds; provided that:
(i) so long as no Event of Default shall then exist or would arise therefrom, the Revolving Commitments shall not be required to be reduced on such date to the extent that Borrower shall give prompt notice of such damage have delivered to the Administrative Agent and shallan Officer’s Certificate of Borrower on or prior to such date stating that such proceeds are reasonably expected to be used (or committed to be used pursuant to a binding written agreement) to repair, replace or restore any property in respect of which such Net Cash Proceeds were paid or to reinvest in assets (other than working capital) used or useful in the business of Borrower or any Subsidiary Guarantor, no later than 365 days following the date of receipt of such proceeds (which Officer’s Certificate shall set forth the estimates of the proceeds to be so expended) (a “Casualty Reinvestment Certificate”); provided that if the property subject to such Casualty Event constituted Collateral, then all property purchased or otherwise acquired with the Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the provisions first priority perfected Lien (subject to Permitted Liens) of Section 10.03the applicable Security Documents in favor of the Collateral Agent, promptly commence for its benefit and diligently prosecute for the benefit of the other Secured Parties in accordance with Section 8.07 Sections 5.10 and this Article X 5.11; and
(ii) if all or any portion of such Net Cash Proceeds shall not be so applied (or committed to be used pursuant to a binding written agreement) within such 365-day period (or if committed to be used during such period are not so used within 180 days following the completion date of the repair and restoration binding written agreement relating thereto), the Revolving Commitments shall be permanently reduced on the last day of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior period by an amount equal to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs unused portion of such Restoration whether or not such costs are covered by Insurance Net Cash Proceeds. The Administrative Collateral Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunderhereby agrees that, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to event any proceeds from a Casualty Event that is not a Significant Casualty Event shall, subject are paid directly to the provisions of this AgreementCollateral Agent by the applicable insurer, be made available the Collateral Agent shall promptly return such cash proceeds to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of so long as (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to then exists or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.would result therefrom and
Appears in 1 contract
Samples: Credit Agreement
Casualty Events. (a) If a Within 30 days following the occurrence of any Casualty Event shall occur as affecting any Property (the "Affected Property") of any Obligor that is expected to any Project which results result in damage the receipt by such Obligor of Net Available Proceeds in excess of $500,0005,000,000, such Obligor shall deliver to the Borrower shall give prompt notice Lenders a statement, certified by the chief financial officer of such damage to the Administrative Agent Obligor and shall, subject to the provisions of Section 10.03, promptly commence in form and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice detail satisfactory to the Administrative Agent, settle and adjust of the amount of the Net Available Proceeds in excess of $5,000,000 of any claim with respect to insurance, condemnation award or other compensation resulting from such Casualty Event without Event. Such statement shall indicate whether the prior consent affected Obligor intends to (i) repair or replace the Affected Property, (ii) reinvest such Net Credit Agreement Available Proceeds in Property of comparable value and substantially similar in respect of type, cash-flow profile and location, if applicable, or (iii) prepay the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out Loans in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to 100% of such Net Available Proceeds. If such Borrower has indicated that it intends to repair or replace the Affected Property or reinvest the Net Available Proceeds relating thereto in excess Property of comparable value (which Property is satisfactory to the Majority Lenders), such Borrower shall either (i) commence such repair or replacement not later than the later of (x) 30 days following the receipt of the Insurance Threshold Amount proceeds of any insurance, condemnation award or compensation in respect of such Casualty Event and (a “Significant Casualty Event”)y) the receipt of all governmental approvals required for the commencement of such repair or replacement or (ii) reinvest such proceeds not later than the later of (p) 90 days after the receipt thereof or (q) the receipt of all governmental approvals required for such reinvestment, provided no Event of Default exists, as the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any timecase may be. If an Event such Obligor has indicated that it does not intend to effect such repair, replacement or reinvestment, then promptly upon receipt of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Eventsuch funds, the Borrower shall immediately endorseprepay, subject to receipt of all government approvals, if any, required for such prepayment, the Loans, and cause all the Borrowing Base shall be subject to automatic reduction, in an aggregate amount, if any, equal to the percentage of the Net Available Proceeds of such third parties Casualty Event attributable to endorseProperty which is then given value in determining the Borrowing Base and not theretofore applied to the repair or replacement of such Property, such check payable prepayment to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent be effected in each case in the settlement, adjustment and collection manner specified in paragraph (c) of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedsthis Section 2.09.
Appears in 1 contract
Casualty Events. (a) If a Each Borrower will, and will cause each of its Subsidiaries to, furnish to the Credit Parties prompt written notice of each Casualty Event shall occur as or other insured damage to any Project which results in damage in excess portion of $500,000, any property owned or held by or on behalf of itself or any of its Subsidiaries or the Borrower shall give prompt notice commencement of any action or proceeding for the condemnation or other taking of any such damage to the Administrative Agent and shall, subject to the provisions property or any part thereof or interest therein under power of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved eminent domain or by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) condemnation or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Projectsimilar proceeding.
(b) If Restoration of any Project following a Casualty Event results in Net Cash Proceeds (whether in the form of insurance proceeds, condemnation award or otherwise), the Administrative Agent is reasonably expected authorized to cost collect such Net Cash Proceeds and, if received by any Borrower or any of its Subsidiaries, such Net Cash Proceeds shall not more than be commingled with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the lesser of (i) $5,000,000 and (ii) ten percent (10%) benefit of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice Administrative Agent hereunder and shall be forthwith paid over to the Administrative Agent, settle and adjust provided that (i) to the extent that any claim with respect Borrower or any of its Subsidiaries intends to use any such Casualty Event without Net Cash Proceeds to repair, restore, reinvest or replace assets of the prior consent Borrower or any of its Subsidiaries as provided in the definition of Net Cash Proceeds, the Administrative Agent shall, subject to the terms and conditions of such proviso, deliver such Net Cash Proceeds to the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess on behalf of the Insurance Threshold Amount applicable Borrower, (ii) otherwise, the Administrative Agent shall, and each Borrower hereby authorizes the Administrative Agent to, apply such Net Cash Proceeds to prepay the Loans in accordance with Section 2.6 and (iii) all proceeds of business interruption insurance shall be paid over to the Borrowers unless a “Significant Casualty Event”), provided no Default or an Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent has occurred and is continuing.
(which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(sc) on the amount to be All proceeds received by or paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (that do not constitute Net Cash Proceeds shall be paid over to the Borrowers on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If applicable Borrower unless a Default or an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle has occurred and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedscontinuing.
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Casualty Events. (a) If a Promptly but in any event not later than the third Business Day following the receipt by Holdings or any Restricted Subsidiary of the proceeds of insurance, condemnation award or other compensation in respect of any Casualty Event shall occur as to affecting any Project which results in damage in excess property of $500,000Holdings or any Restricted Subsidiary after the date hereof, the Borrower Issuer shall give prompt notice redeem the Notes in an aggregate amount equal to the Net Available Proceeds of such damage Casualty Event; PROVIDED that no redemption of Notes shall be required pursuant to this CLAUSE (II) to the extent such Net Available Proceeds are reinvested in the repair, restoration or replacement of such property or invested in Telecommunications Assets to be acquired by Holdings or any of its Restricted Subsidiaries within 360 days of the date of such receipt and, pending such reinvestment, such Net Available Proceeds are either (A) deposited with the Administrative Agent and shall, subject held as collateral for the obligations of the Issuer hereunder (PROVIDED that nothing herein shall be deemed to require the Administrative Agent to release any such proceeds after the occurrence and during the continuance of an Event of Default) or (B) applied by the Issuer to the provisions redemption of Section 10.03, promptly commence and diligently prosecute Notes hereunder (in accordance with Section 8.07 and this Article X which event the completion Issuer agrees to advise the Administrative Agent in writing at the time of such redemption of Notes that such redemption is being made from the proceeds of a Casualty Event). Nothing in the immediately preceding sentence shall be deemed to limit any obligation of the repair and restoration Issuer pursuant to any of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior Security Documents to such Casualty Event, with such alterations as may be reasonably approved remit to a collateral or similar account maintained by the Administrative Agent (a “Restoration”) for any Restoration for which such approval is otherwise required or the Holdings Notes Agent pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment any of the Obligations unless required to be made available to Security Documents the Borrower for Restoration hereunderproceeds of insurance, condemnation award or other compensation received in which case such Net Proceeds shall, subject to the provisions respect of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
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Casualty Events. Not later than fifteen (a15) If Business Days following the receipt of any Net Cash Proceeds from a Casualty Event shall occur as to by any Project which results in damage in excess of $500,000, the Borrower shall give prompt notice of such damage to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute in accordance with Section 8.07 and this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent Credit Party (a “Restoration”) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Event, shall, at the Administrative Agent’s option, be applied to the payment of the Obligations unless required to be made available to the Borrower for Restoration hereunder, in which case such Net Proceeds shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds other than with respect to a Casualty Event involving all or any portion of the Property located at the Lxxxxxx Facility), the Company shall make a written offer to each Holder (by delivering such offer to the Trustee who shall at the expense of the Company (x) promptly deliver such offer to each Holder and (y) thereafter notify the Company when the Trustee has delivered such notice to the Holders) to apply an amount equal to 100% of such Net Cash Proceeds to redeem the Obligations, if any are then outstanding, in accordance with Section 3.14(e) and Section 3.14(f) below, and each Holder shall have thirty (30) days after it receives such written offer from the Company (or the Trustee, as applicable) to determine whether to accept its Pro Rata Share of such redemption offer (failure to respond within such thirty (30) day period shall be construed as acceptance of such redemption offer by such Holder); provided that is not no such redemption (or offer to redeem Obligations) shall be required under this Section 3.14(c) with respect to any Disposition of Property which constitutes a Significant Casualty Event resulting in no more than $250,000 in Net Cash Proceeds per Casualty Event to the extent that the aggregate amount of Net Cash Proceeds from such Casualty Events does not exceed $500,000 in any fiscal year; provided, further:
(i) other than with respect to a Casualty Event involving all or any portion of the Property located at the Lxxxxxx Facility, so long as no Default or Event of Default shall then exist or arise therefrom, such proceeds shall not be required to be so offered on such date to the extent that the Company shall, following the receipt of such Net Cash Proceeds, have delivered a certificate to the Trustee within fifteen (15) Business Days stating that such proceeds are expected to be applied to the costs of replacement or repair of the properties or assets that are the subject of such Casualty Event or the cost of purchase or construction of other assets useful in the business of the Credit Parties or of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder and, in each case, otherwise in compliance with the terms of this Indenture no later than one (1) year after receipt of the Net Cash Proceeds from such Casualty Event provided that, if the Property subject to the provisions of this AgreementCasualty Event constitutes Collateral under any Security Document, be made available then the replacement properties and assets and/or such other assets so purchased or constructed shall constitute Collateral subject to the Borrower Lien granted pursuant to pay the costs incurred Security Documents in connection favor of the Collateral Trustee, for the benefit of the other Secured Parties in accordance with Sections 4.17, 4.20, 4.21, and 4.41, including through Acquisitions permitted hereunder, provided further that if any amount is so committed to be reinvested within such one-year period, but is not reinvested within the later to occur of (x) six (6) months of the date of such commitment and (y) the end of such one-year period, the Company shall offer to redeem the Obligations in accordance with this Section 3.14(c)(i) in accordance with the Restoration of procedures outlined above without giving further effect to such reinvestment right (to the affected Project.extent that the Holders have accepted the redemption offer); and
(bii) If Restoration For the avoidance of any Project following a Casualty Event is reasonably expected doubt, the Company shall be excused from making an offer to cost not more than redeem the lesser Obligations under Section 3.14(c)(i) to the extent that it has delivered written notice to the Trustee within fifteen (15) Business Days of receipt of Net Cash Proceeds from such Disposition stating its intention to reinvest the Net Cash Proceeds as set forth in such Section 3.14(c)(i) (or by filing materials with the Commission stating the Company’s intention and contemporaneously delivering such materials to the Trustee) provided that (i) $5,000,000 the Company is otherwise entitled to invest or reinvest the Net Cash Proceeds pursuant to Section 3.14(c)(i) hereof and (ii) ten percent this sentence shall not be construed to limit the Company’s obligation to offer to prepay the Obligations to the extent that the Company fails to invest the applicable Net Cash Proceeds within the time periods set forth in Section 3.14(c)(i).
(10%iii) If all or any portion of the Appraised Value of Property located at the Lxxxxxx Facility is subject to a Casualty Event, within fifteen (15) Business Days after the Net Cash Proceeds from such Project (the “Insurance Threshold Amount”), provided no Casualty Event of Default existsare received, the Borrower may, upon Company shall make a written offer to each Holder (by delivering such offer to the Trustee who shall at the expense of the Company (x) promptly deliver such offer to each Holder and (y) thereafter notify the Company when the Trustee has delivered such notice to the Administrative AgentHolders) to apply an amount equal to 100% of such Net Cash Proceeds to redeem the Obligations, settle if any are then outstanding, in accordance with Section 3.14(e) and adjust any claim Section 3.14(f) below, and each Holder shall have thirty (30) days after it receives such written offer from the Company (or the Trustee, as applicable) to determine whether to accept its Pro Rata Share of such redemption offer (failure to respond within such thirty (30) day period shall be construed as acceptance of such redemption offer by such Holder); provided that no such redemption (or offer to redeem Obligations) shall be required under this Section 3.14(c)(iii) with respect to such Casualty Event without Events which do not exceed, in the prior consent aggregate, a fair market value of $5,000,000 through the Maturity Date. Any of such Net Cash Proceeds that are not so applied to the Obligations in accordance with this Section 3.14(c)(iii) shall be invested, reinvested or applied to the costs of replacement of the Administrative Agent properties or assets that are the subject of such Casualty Event or the cost of purchase or construction of other assets useful in the business of the Credit Parties or of the general type used in the business of the Credit Parties provided that if the Property subject to the Casualty Event constitutes Collateral under any Security Document, then all of such replacement properties or assets or other assets shall constitute Collateral subject to the Lien granted pursuant to the Security Documents in favor of the Collateral Trustee, for the benefit of the Secured Parties in accordance with Sections 4.17, 4.20, 4.21, and 4.41.
(iv) Each written offer to redeem the Obligations delivered to Holders in accordance with Section 3.14(c) shall specify the section of this Indenture pursuant to which the redemption shall occur, the proposed redemption date, the Principal Amount of the Obligations to be redeemed and the Borrower amount of accrued interest and Mandatory Redemption Make-Whole Payment due in connection therewith. Each redemption of any or all of the Obligations shall be applied according to Section 3.14(e). Redemptions shall be accompanied by accrued and unpaid interest to, but not including, the redemption date. If any Holder accepts such offer, subject to Section 3.14(e) hereof, the Credit Parties shall pay to the Trustee, for the benefit of such Holders, such Holder’s Pro Rata Share of the aggregate redemption price offered to Holders, together with the corresponding Mandatory Redemption Make-Whole Payment, within one (1) Business Day after the thirty (30) day period after such Holder receives the offer from the Company or the Trustee, as applicable, and each such redemption shall be accompanied by a written notice to the Trustee specifying the provision pursuant to which the redemption is hereby authorized to collect being made and the Insurance Proceeds amount of principal, interest and Mandatory Redemption Make-Whole Payment being paid.
(v) Without limiting or otherwise modifying the perfection requirements with respect to any Deposit Accounts (as defined in the Security Agreement) set forth in the Security Agreement, promptly upon delivering notice to the Trustee (or by filing materials with the Commission stating the Company’s intention and contemporaneously delivering such claim; provided such adjustment is carried out in materials to the Trustee and each Holder) stating its intention to invest or reinvest the Net Cash Proceeds from a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a “Significant Casualty Event”), provided no Event all of Default exists, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount such Net Cash Proceeds to be paid on the loss, and the Insurance Proceeds invested or reinvested pursuant Section 3.14(c) shall be due and payable solely remitted to a Deposit Account that constitutes a Collateral Account until such amounts are so invested or reinvested.
(vi) All offers to redeem the Administrative Agent Obligations under this Section 3.14(c) shall be made on a pro rata basis based upon each Holder’s Pro Rata Share (on behalf of the Lenders); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty EventGlobal Notes, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to such offers will be paid on the loss, and the Insurance Proceeds shall be due and payable solely made pursuant to the Administrative Agent (on behalf of the Lenders) and deposited in Applicable Procedures that most nearly approximate a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceedspro rata selection).
Appears in 1 contract
Samples: Indenture (Gevo, Inc.)
Casualty Events. Not later than ten (a10) If Business Days following the receipt of any Net Cash Proceeds from a Casualty Event shall occur as to by any Project which results in damage in excess of $500,000Group Member, the Borrower shall give prompt notice apply an amount equal to 100% of such damage Net Cash Proceeds to the Administrative Agent and shall, subject to the provisions of Section 10.03, promptly commence and diligently prosecute make prepayments in accordance with Section 8.07 2.10(i) and (j); provided that
(i) no such prepayment shall be required under this Article X the completion of the repair and restoration of such Project in accordance with Applicable Law to, as nearly as reasonably possible, the condition such Project was in immediately prior to such Casualty Event, with such alterations as may be reasonably approved by the Administrative Agent clause (a “Restoration”e) for any Restoration for which such approval is otherwise required pursuant to Section 10.03(e(A) or alteration for which such approval is otherwise required pursuant to Section 8.07. The Borrower shall pay all costs of such Restoration whether or not such costs are covered by Insurance Proceeds. The Administrative Agent may, but shall not be obligated to make proof of loss if not made promptly by the Borrower. All Net Proceeds with respect to a Significant Casualty Eventany disposition of property which constitutes an Asset Sale, shall, at the Administrative Agent’s option, be applied or (B) to the payment extent the aggregate amount of Net Cash Proceeds from all such Casualty Events, together with Asset Sales, do not exceed the Obligations unless required to be made available to the Borrower for Restoration hereunderAsset Sale/Casualty Event Threshold; provided that, in which case only such Excess Net Cash Proceeds shall, shall subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration. All Net Proceeds with respect to a Casualty Event that is not a Significant Casualty Event shall, subject to the provisions of this Agreement, be made available to the Borrower to pay the costs incurred in connection with the Restoration of the affected Project.Section 2.10(e)),
(b) If Restoration of any Project following a Casualty Event is reasonably expected to cost not more than the lesser of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value of such Project (the “Insurance Threshold Amount”), provided so long as no Event of Default existsunder Section 8.01(a), (b), (g) or (h) shall have occurred and be continuing, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to such Casualty Event without the prior consent of shall have notified the Administrative Agent and the Borrower is hereby authorized on or prior to collect the Insurance Proceeds with respect to any such claim; provided date stating that such adjustment is carried out in a manner consistent with good business practice. In the event that Restoration of any Project is reasonably expected to cost an amount equal to or proceeds in excess of the Insurance Casualty Event Threshold Amount are expected (x) to be used to repair, replace or restore any Property in respect of which such Net Cash Proceeds were paid or to reinvest in other fixed or Capital Assets or assets that are otherwise used or useful in the business of the Group Members (including pursuant to a “Significant Casualty Event”Permitted Acquisition, investment or Capital Expenditure), provided or (y) to be contractually committed to be so reinvested, in each case, no Event later than 15 months (or within 21 months following receipt thereof if such contractual commitment to reinvest has been entered into within 15 months following receipt thereof) following the date of Default existsreceipt of such proceeds; and
(iii) if all or any portion of such Excess Net Cash Proceeds that are the subject of a notice delivered pursuant to clause (i) immediately above is neither reinvested nor contractually committed to be so reinvested within such 15 month period (or is not actually reinvested within such additional six (6) month period, the Borrower may, with the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheldif applicable), settle and adjust any claim of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds such unused portion shall be due and payable solely to applied within ten (10) Business Days after the Administrative Agent (on behalf last day of the Lenderssuch period as a mandatory prepayment as provided in this Section 2.10(e); notwithstanding the foregoing, the Administrative Agent shall retain the right to participate (not to the exclusion of the Borrower) in any such insurance settlement at any time. If an Event of Default exists, with respect to any Casualty Event, the Administrative Agent, in its sole discretion, may settle and adjust any claim without the consent of the Borrower and agree with the insurer(s) on the amount to be paid on the loss, and the Insurance Proceeds shall be due and payable solely to the Administrative Agent (on behalf of the Lenders) and deposited in a Controlled Account and disbursed in accordance herewith. If the Borrower or any party other than the Administrative Agent is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty Event, the Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of the Administrative Agent. The Borrower hereby irrevocably appoints the Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such check payable to the order of the Administrative Agent. The reasonable out-of-pocket expenses incurred by the Administrative Agent in the settlement, adjustment and collection of the Insurance Proceeds shall become part of the Obligations and shall be reimbursed by the Borrower to the Administrative Agent upon demand to the extent not already deducted by the Administrative Agent from such Insurance Proceeds in determining Net Proceeds.
Appears in 1 contract
Samples: Credit Agreement (2U, Inc.)
