Event of Loss. (a) Upon the occurrence or happening of any Event of Loss in respect of a Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02. (b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following: (1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or (2) make an Event of Loss Offer in accordance with the terms hereof. (c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment. (d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cash.
Appears in 2 contracts
Samples: Credit Agreement (Seadrill Partners LLC), Credit Agreement (Seadrill Partners LLC)
Event of Loss. (ai) Upon the occurrence or happening of any If an Event of Loss shall occur with respect to an Airframe or an Engine, Company will promptly notify Agent thereof in respect of a Collateral Vessel writing (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent any event within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application days of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceedsoccurrence) and will, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 later than 180 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Proceeds in connection with such Event of Loss Proceeds Loss, mortgage hereunder, by complying with all of the terms of subsection (ii) below and otherwise taking all necessary actions to provide that Company (and the Agent upon foreclosure of Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the replacement airframe or engine referred to below, an Acceptable Alternate Airframe or Acceptable Alternate Engine free of all Liens (other than Permitted Encumbrances and the Lease). Upon compliance with the preceding sentence within such fewer number 180-day period, Agent will execute and deliver to Company a partial release, in recordable form, releasing the lien of days as are necessary this Mortgage to ensure the extent that it covers such Airframe or Engine with respect to which such Event of Loss Proceeds are not required to be utilized in respect of has occurred. Such Acceptable Alternate Airframe or Acceptable Alternate Engine shall thereupon constitute an asset sale offer "Airframe" or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantoran "Engine", as the case may be, for all purposes hereof and shall apply be deemed to constitute part of the Aircraft.
(ii) Whenever Company shall subject any Airframe or Engine to the lien and security interest of this Mortgage (as contemplated by paragraph (i) above), Company will on or prior thereto:
(A) deliver to Agent and duly file for recording under the Act, a Supplemental Chattel Mortgage substantially in the form of Exhibit A hereto duly executed by Company appropriately describing such engine to be subjected to the lien and security interest of this Mortgage;
(B) deliver to Agent for filing financing statements under Article 9 of the Uniform Commercial Code of the States of Colorado and New York (or such other States as may be required at such time) covering the security interest created by this Mortgage to perfect the security interest of Agent in the Airframe or Engine to be subjected to the lien and security interest of this Mortgage;
(C) deliver to Agent an Officers' Certificate dated the date of execution of said Supplemental Chattel Mortgage, stating:
(I) that the representations and warranties contained in Section 3 hereof are true and correct on and as of such date of execution with respect to such Airframe or Engine and Company;
(II) that, upon consummation of the terms of this Section 4(f), no Potential Event of Default or Event of Default will exist; and
(III) that all conditions precedent contemplated in this Section 4(f)(iii) have been complied with.
(D) furnish Agent with evidence of compliance with the insurance provisions of Section 4(g) hereof with respect to such Airframe or Engine as Agent may reasonably request;
(E) furnish Agent with a warranty (as to title) bill xx sale, in form and substance reasonably satisfactory to Agent with respect to such Airframe or Engine;
(F) furnish Agent with such evidence of title such as the bill xx sale as Agent may reasonably request concerning such Airframe or Engine;
(G) cause to be delivered to Agent an appraisal by the Approved Appraisers relating to the Airframe or Engine to be subjected to the lien and the security interest of this Mortgage stating that it has a value and utility at least equal to, and in as good operating condition as the Airframe or Engine subject to such Event of Loss Proceeds at its option immediately prior to any combination such Event of Loss, assuming compliance by Company with all the followingterms of this Mortgage with respect to such Airframe or Engine; and
(H) cause to be delivered to Agent an opinion or opinions of counsel dated the date of execution of such Supplemental Chattel Mortgage, stating:
(I) that the Airframe or Engine specifically described in said Supplemental Chattel Mortgage, is free and clear of all recorded Liens,
(II) that said Supplemental Chattel Mortgage (1) to acquire has been duly authorized, executed and substitute one or more Substitute Vessels (delivered by Company, and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make creates a valid, perfected and first priority security interest in and to the Airframe or Engine described in said Supplemental Chattel Mortgage, enforceable against all third parties and securing the payment of all obligations purported to be secured thereby and that all action required to perfect fully such security interest has been taken and completed,
(III) that said Supplemental Chattel Mortgage has been duly filed for recordation in accordance with the provisions of the Act to continue the perfection and priority of the security interest intended to be created by the Mortgage,
(IV) that Company (and the Agent upon succeeding to Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the lease of the Airframe or Engine described in said Supplemental Chattel Mortgage, and
(V) as to such other matters as Agent may reasonably request. Promptly upon the recording of each Supplemental Chattel Mortgage under the Act, Company will cause to be delivered to Agent an opinion of counsel for Company as to the due recording of such Supplemental Chattel Mortgage in accordance with the Act.
(iii) With respect to the Airframe or any Engine, as between the Agent and Company, any payments on account of an Event of Loss Offer (other than insurance proceeds or other payments the application of which is pro- vided for in Section 4(g) below and under the terms of the Credit Agreement) received from any government authority or other person shall be applied as follows:
(A) if such payments are received with respect to an Event of Loss to an Airframe or Engine that has been or is being replaced by Company pursuant to the terms hereof, so long as there shall exist no Event of Default or Potential Event of Default, such payment shall be paid over to or retained by Company or Lessee upon satisfaction of the conditions for replacement contained in paragraph (ii) above and until such time shall be held by Agent in accordance with the terms hereof.provisions hereof as security for the Secured Obligations; and
(cB) A binding commitment if such payments are received with respect to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above respect to which no replacement is being effected, such payments shall toll be applied to the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration prepayment of the aforementioned 365-day period so long as such Event Notes required pursuant to the terms of Loss Proceeds are actually used within the later Credit Agreement and shall be held pursuant to the terms of 365 days from their receipt from such Event of Loss this Mortgage, and the balance, if any, shall be paid over to or 365 days from the date of such binding commitmentretained by Company.
(div) In the event of a requisition for use by the United States Government of the Airframe or any Engine, Company shall promptly notify Agent of such requisition and all of Company's obligations under this Mortgage shall continue to the same extent as if such requisition had not occurred. Any payments received by Agent or Company from the United States Government for the use of the Airframe or such Engine, shall be paid over to, or retained by, Company.
(iv) Any Event amount referred to in paragraph (iii) or (iv) of Loss Proceeds that have this Section 4(f) which is payable to or retained by Company shall not been previously applied be paid to Company or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10retained by Company, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding if at the time of such Event of Loss. The offer price for the Term Loans in payment or retention any Event of Loss Offer Default or a Potential Event of Default shall have occurred and be continuing, but shall be equal held by or paid over to 100% Agent as security for the obligations of Company under this Mortgage and the outstanding principal amountother Loan Documents, plus accrued and unpaid interestand, if anyAgent shall declare the Credit Agreement to be in default, on the Term Loans repaid shall be applied against Company's obligations hereunder and thereunder as and when due. At such time as there shall not be continuing any such Event of Default or Potential Event of Default, such amount shall be paid to Company to the applicable repayment dateextent not previously applied in accordance with the preceding sentence. In addition, payable and whether or not there shall exist an Event of Default or Potential Event of Default, until such time as Company shall request to be paid any amount referred to in cashparagraph (iii) or (iv) in order to effect the mortgaging hereunder of a replacement Airframe or Engine, any amounts referred to in paragraphs (iii) or (iv) of this Section 4(f) shall be held by the Agent as security for the obligations of Company under this Mortgage and the other Loan Documents.
Appears in 2 contracts
Samples: Security Agreement and Chattel Mortgage (Atlas Air Inc), Security Agreement and Chattel Mortgage (Atlas Air Inc)
Event of Loss. (ai) Upon the occurrence or happening of any If an Event of Loss shall occur with respect to an Airframe or an Engine, Company will promptly notify Agent thereof in respect of a Collateral Vessel writing (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent any event within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application days of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceedsoccurrence) and will, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 later than 180 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Proceeds in connection with such Event of Loss Proceeds Loss, mortgage hereunder, by complying with all of the terms of subsection (ii) below and otherwise taking all necessary actions to provide that Company (and the Agent upon foreclosure of Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the replacement airframe or engine referred to below, an Acceptable Alternate Airframe or Acceptable Alternate Engine free of all Liens (other than Permitted Encumbrances and the Lease). Upon compliance with the preceding sentence within such fewer number 180-day period, Agent will execute and deliver to Company a partial release, in recordable form, releasing the lien of days as are necessary this Mortgage to ensure the extent that it covers such Airframe or Engine with respect to which such Event of Loss Proceeds are not required to be utilized in respect of has occurred. Such Acceptable Alternate Airframe or Acceptable Alternate Engine shall thereupon constitute an asset sale offer "Airframe" or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantoran "Engine", as the case may be, for all purposes hereof and shall apply be deemed to constitute part of the Aircraft.
(ii) Whenever Company shall subject any Airframe or Engine to the lien and security interest of this Mortgage (as contemplated by paragraph (i) above), Company will on or prior thereto:
(A) deliver to Agent and duly file for recording under the Act, a Supplemental Chattel Mortgage substantially in the form of Exhibit A hereto duly executed by Company appropriately describing such engine to be subjected to the lien and security interest of this Mortgage;
(B) deliver to Agent for filing financing statements under Article 9 of the Uniform Commercial Code of the States of Colorado and New York (or such other States as may be required at such time) covering the security interest created by this Mortgage to perfect the security interest of Agent in the Airframe or Engine to be subjected to the lien and security interest of this Mortgage;
(C) deliver to Agent an Officers' Certificate dated the date of execution of said Supplemental Chattel Mortgage, stating:
(I) that the representations and warranties contained in Section 3 hereof are true and correct on and as of such date of execution with respect to such Airframe or Engine and Company;
(II) that, upon consummation of the terms of this Section 4(f), no Potential Event of Default or Event of Default will exist; and
(III) that all conditions precedent contemplated in this Section 4(f)(iii) have been complied with.
(D) furnish Agent with evidence of compliance with the insurance provisions of Section 4(g) hereof with respect to such Airframe or Engine as Agent may reasonably request;
(E) furnish Agent with a warranty (as to title) bill xx sale, in form and substance reasonably satisfactory to Agent with respect to such Airframe or Engine;
(F) furnish Agent with such evidence of title such as the bill xx sale as Agent may reasonably request concerning such Airframe or Engine;
(G) cause to be delivered to Agent an appraisal by the Approved Appraisers relating to the Airframe or Engine to be subjected to the lien and the security interest of this Mortgage stating that it has a value and utility at least equal to, and in as good operating condition as the Airframe or Engine subject to such Event of Loss Proceeds at its option immediately prior to any combination such Event of Loss, assuming compliance by Company with all the followingterms of this Mortgage with respect to such Airframe or Engine; and
(H) cause to be delivered to Agent an opinion or opinions of counsel dated the date of execution of such Supplemental Chattel Mortgage, stating:
(I) that the Airframe or Engine specifically described in said Supplemental Chattel Mortgage, is free and clear of all recorded Liens,
(II) that said Supplemental Chattel Mortgage (1) to acquire has been duly authorized, executed and substitute one or more Substitute Vessels (delivered by Company, and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make creates a valid, perfected and first priority security interest in and to the Airframe or Engine described in said Supplemental Chattel Mortgage, enforceable against all third parties and securing the payment of all obligations purported to be secured thereby and that all action required to perfect fully such security interest has been taken and completed,
(III) that said Supplemental Chattel Mortgage has been duly filed for recordation in accordance with the provisions of the Act to continue the perfection and priority of the security interest intended to be created by the Mortgage, and
(IV) that Company (and the Agent upon succeeding to Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the lease of the Airframe or Engine described in said Supplemental Chattel Mortgage.
(V) as to such other matters as Agent may reasonably request. Promptly upon the recording of each Supplemental Chattel Mortgage under the Act, Company will cause to be delivered to Agent an opinion of counsel for Company as to the due recording of such Supplemental Chattel Mortgage in accordance with the Act.
(iii) With respect to the Airframe or any Engine, as between the Agent and Company, any payments on account of an Event of Loss Offer (other than insurance proceeds or other payments the application of which is provided for in Section 4(g) below and under the terms of the Credit Agreement) received from any government authority or other person shall be applied as follows:
(A) if such payments are received with respect to an Event of Loss to an Airframe or Engine that has been or is being replaced by Company pursuant to the terms hereof, so long as there shall exist no Event of Default or Potential Event of Default, such payment shall be paid over to or retained by Company or Lessee upon satisfaction of the conditions for replacement contained in paragraph (ii) above and until such time shall be held by Agent in accordance with the terms hereof.provisions hereof as security for the Secured Obligations; and
(cB) A binding commitment if such payments are received with respect to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above respect to which no replacement is being effected, such payments shall toll be applied to the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration prepayment of the aforementioned 365-day period so long as such Event Notes required pursuant to the terms of Loss Proceeds are actually used within the later Credit Agreement and shall be held pursuant to the terms of 365 days from their receipt from such Event of Loss this Mortgage, and the balance, if any, shall be paid over to or 365 days from the date of such binding commitmentretained by Company.
(div) In the event of a requisition for use by the United States Government of the Airframe or any Engine, Company shall promptly notify Agent of such requisition and all of Company's obligations under this Mortgage shall continue to the same extent as if such requisition had not occurred. Any payments received by Agent or Company from the United States Government for the use of the Airframe or such Engine, shall be paid over to, or retained by, Company.
(iv) Any Event amount referred to in paragraph (iii) or (iv) of Loss Proceeds that have this Section 4(f) which is payable to or retained by Company shall not been previously applied be paid to Company or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10retained by Company, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding if at the time of such Event of Loss. The offer price for the Term Loans in payment or retention any Event of Loss Offer Default or a Potential Event of Default shall have occurred and be continuing, but shall be equal held by or paid over to 100% Agent as security for the obligations of Company under this Mortgage and the outstanding principal amountother Loan Documents, plus accrued and unpaid interestand, if anyAgent shall declare the Credit Agreement to be in default, on the Term Loans repaid shall be applied against Company's obligations hereunder and thereunder as and when due. At such time as there shall not be continuing any such Event of Default or Potential Event of Default, such amount shall be paid to Company to the applicable repayment dateextent not previously applied in accordance with the preceding sentence. In addition, payable and whether or not there shall exist an Event of Default or Potential Event of Default, until such time as Company shall request to be paid any amount referred to in cashparagraph (iii) or (iv) in order to effect the mortgaging hereunder of a replacement Airframe or Engine, any amounts referred to in paragraphs (iii) or (iv) of this Section 4(f) shall be held by the Agent as security for the obligations of Company under this Mortgage and the other Loan Documents.
Appears in 2 contracts
Samples: Security Agreement (Atlas Air Inc), Security Agreement and Chattel Mortgage (Atlas Air Inc)
Event of Loss. (a) Upon the occurrence or happening of With respect to any Event of Loss in respect of a Collateral Vessel (such Collateral VesselLoss, if the “Lost Mortgaged Collateral Vessel”)proceeds received by any Loan Party, and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower Existing Foreign Subsidiary or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period Affiliate thereof in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration shall be in excess of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such $1,000,000 per individual Event of Loss or 365 days from the date of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided $2,000,000 in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount per calendar year across all Events of Excess Loss Proceeds exceeds $50,000,000Loss, the Term Borrowers shalland, or shall cause the applicable Guarantor toin any such case, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely are not applied to the Term LendersRestoration of the related Affected Property as permitted by the immediately succeeding sentence, then the Borrower shall offer to repay or purchase prepay the maximum principal amount of Term Loans in with an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amountNet Available Amount with respect to such Event of Loss, plus accrued and unpaid interest, if any, on the Term Loans repaid pursuant to a written notice sent to the applicable repayment dateAdministrative Agent and the Lenders describing in reasonable detail the event giving rise to the obligation under this Section 2.05(b)(i) to make such offer (each such offer to prepay referred to in this Section 2.05(b)(i), payable a “Event of Loss Prepayment Offer”). Notwithstanding the foregoing, the Borrower may use Loss Proceeds received in cashrespect of any Event of Loss for the reinvestment of such funds in the Restoration of the Affected Property if the Borrower shall have delivered to the Administrative Agent a Reinvestment Notice and a restoration plan reasonably acceptable to the Administrative Agent and such reinvestment is applied in accordance with such approved restoration plan. The Borrower shall cause all Loss Proceeds to be received in respect of any Event of Loss to be deposited in the Mandatory Prepayment Account in accordance with Section 5.18(h) and such Loss Proceeds shall be retained in the Mandatory Prepayment Account in accordance with Section 5.18(h) until such amounts are applied either (x) to the Restoration of the related Affected Property as permitted above or (y) applied to make a prepayment of Loans in connection with an Event of Loss Prepayment Offer pursuant to this clause (i).
Appears in 2 contracts
Samples: Credit Agreement (Fuelcell Energy Inc), Credit Agreement (Fuelcell Energy Inc)
Event of Loss. (a) Upon the occurrence or happening of any If an Event of Loss in shall occur with respect of a Collateral Vessel (such Collateral Vesselto an Airframe or an Engine, the “Lost Mortgaged Collateral Vessel”), Lessee will promptly notify the Lessor and the receipt of Event of Loss Proceeds Agent thereof in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent writing (in any event within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application days of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceedsoccurrence) and will, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 later than 180 days (subject to extension as provided in Section 4.02(c)) after the receipt occurrence of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required Loss, convey or cause to be utilized in respect conveyed to the Lessor, free of all Liens (other than Permitted Encumbrances) title to an asset sale offer Acceptable Alternate Airframe or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable GuarantorAcceptable Alternate Engine, as the case may be. Prior to or at the time of any such conveyance, the Lessee, at its own expense, will, as conditions to such transfer, (i) furnish the Lessor with a warranty (as to title) xxxx of sale, from a person and in form and substance reasonably satisfactory to the Lessor, with respect to such Acceptable Alternate Airframe or Acceptable Alternate Engine, (ii) cause a Lease Supplement to be filed for recording pursuant to Title 49 of the United States Code, as amended, (iii) furnish the Lessor with such evidence of the Lessee's title to such Acceptable Alternate Airframe or Acceptable Alternate Engine and of compliance with the insurance provisions of Section 14 hereof with respect to such Acceptable Alternate Airframe or Acceptable Alternate Engine as the Lessor may reasonably request, (iv) furnish the Lessor with an opinion of the Lessee's counsel to the effect that title to such Acceptable Alternate Airframe or Acceptable Alternate Engine has been duly conveyed to the Lessor free and clear of all Liens except Permitted Encumbrances and the Lessor and the Agent continue to have 1110 protection with respect to such Aircraft. Upon satisfaction of the foregoing conditions, the Lessor shall apply transfer to or at the direction of the Lessee without recourse or warranty all of the Lessor's right, title and interest, if any, in and to
(A) the Airframe or Engine with respect to which such Event of Loss Proceeds occurred and furnish to or at its option to any combination the direction of the following:Lessee, at the Lessee's expense, a xxxx of sale without warranty other than to the absence of a Lessor Lien in form and substance reasonably satisfactory to the Lessee, evidencing such transfer and (B) all claims, if any, against third parties, for damage to or loss of the Airframe or Engine subject to such Event of Loss, and such Airframe or Engine shall thereupon cease to be an Airframe or Engine leased hereunder. The Lessee shall cooperate with the Lessor and take all such actions as shall be requested by the Lessor so that the Lessor complies with Section 4(f) of the Aircraft Chattel Mortgage. For all purposes hereof, each such Acceptable Alternate Airframe or Acceptable Alternate Engine shall, after such conveyance, be deemed part of the property leased hereunder, and shall be deemed an "Airframe" or "Engine," as the case may be. No Event of Loss under the circumstance contemplated by the terms of this paragraph (a) shall result in any reduction in Basic Rent or any other obligation of the Lessee hereunder.
(1b) With respect to acquire and substitute one the Airframe or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which Engine, as between the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent Lessor and the other Secured Parties; or
(2) make Lessee, any payments on account of an Event of Loss Offer (other than insurance proceeds or other payments the application of which is provided for in accordance Section 14 below) received from any governmental authority or other person shall be applied as follows:
(A) if such payments are received with respect to an Event of Loss to an Airframe or Engine that has been or is being replaced by the Lessee pursuant to the terms hereof., so long as there shall exist no Default or Lease Event of Default, such payment shall be paid over to or retained by the Lessee upon satisfaction of the conditions for replacement contained in paragraph (a) above and until such time shall be held by the Lessor as security for the obligations of the Lessee under the Lease; and
(B) if such payments are received with respect to an Event of Loss with respect to which no replacement is being effected, so much of such payments as shall not exceed (A) the Stipulated Loss Value as of the date of payment plus (B) all unpaid Supplemental Rent due through the date of payment, plus (C) all unpaid Basic Rent for the period ending on the date of payment shall be paid by the Lessee to the Lessor and following the foregoing application, the balance, if any, of such payments shall be distributed between the Lessee and the Lessor as their respective interests may appear;
(c) A binding commitment to apply Event In the event of Loss Proceeds from an Event a requisition for use by the United States Government of Loss in accordance with clause (b)(1) above the Airframe or any Engine, the Lessee shall toll promptly notify the 365-day period in respect Lessor and the Agent of such Event requisition and all of Loss Proceeds for a period the Lessee's obligations under the Lease shall continue to the same extent as if such requisition had not to exceed 365 days occurred. Any payments received by the Lessor or the Lessee from the expiration United States Government for the use of the aforementioned 365-day period so long as Airframe or such Event of Loss Proceeds are actually used within Engine, to the later of 365 days from their receipt from such Event of Loss extent allocable to the Term, shall be paid over to, or 365 days from retained by, the date of such binding commitmentLessee.
(d) (i) Any Event of Loss Proceeds amount referred to in this Section 13 that have is payable to or retained by the Lessee shall not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely be paid to the Term LendersLessee or retained by the Lessee, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding if at the time of such payment or retention any Default or Lease Event of Loss. The offer price Default shall have occurred and be continuing, but shall be held by or paid over to the Lessor as security for the Term Loans in obligations of the Lessee under the Lease and shall be applied against the Lessee's obligations hereunder as and when due. At such time as there shall not be continuing any such Default or Lease Event of Loss Offer Default, such amount shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid paid to the applicable repayment date, payable Lessee to the extent not previously applied in cashaccordance with the preceding sentence.
Appears in 1 contract
Samples: Lease Agreement (Atlas Air Inc)
Event of Loss. (a) Upon the occurrence or happening of any Event of Loss in respect of a Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 360 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Net Loss Proceeds from an Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor)Loss, the Borrowers Parent Company or the applicable Guarantoraffected Restricted Subsidiary, as the case may be, shall must apply such Event of the Net Loss Proceeds at its option to any combination of the followingProceeds:
(1a) to acquire and substitute one be reinvested in the business of the Parent Company or more Substitute Vessels (a Restricted Subsidiary and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel the extent that the assets that were the subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect of such Event of Loss constituted Collateral such replacement assets shall be required to constitute Collateral; provided that if the Parent Company or a Restricted Subsidiary enters into a binding agreement to acquire such assets within such 360 day period, such Net Loss Proceeds for a period not shall be deemed to exceed 365 days from the expiration of the aforementioned 365-day period have been applied pursuant to this clause (a) so long as such Event of Net Loss Proceeds are actually used applied to acquire such assets within the later of 365 180 days from their receipt from following such Event of Loss or 365 days from the date of such binding commitment.360th day;
(db) to repay Senior Priority Obligations (iand, in the case of Senior Priority Obligations that are revolving obligations, permanently reduce the commitments with respect thereto); or
(c) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) Notes at 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid and if applicable, to make an offer to the holders of other Permitted Additional Pari Passu Obligations that by its terms requires the Parent Company or any of its Restricted Subsidiaries to make an offer to purchase such Permitted Additional Pari Passu Obligations upon an Event of Loss, to purchase such Permitted Additional Pari Passu Obligations on a pro rata basis with the Notes, in each case, in accordance with Section 3.09. The Company shall comply with the requirements of Rule 14e 1 under the Exchange Act and other securities laws and regulations thereunder to the extent such laws or regulations are applicable repayment datein connection with the repurchase of the Notes pursuant to clause (c) above. To the extent that the provisions of any applicable securities laws or regulations conflict with the Event of Loss provisions of this Indenture, payable the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Event of Loss provisions of this Indenture by virtue of such compliance. Any Net Loss Proceeds that remain following compliance by the Company with its obligations set forth in cashthe first paragraph of this Section 4.19 may be used for any purpose not otherwise prohibited by this Indenture. Pending the final application of any Net Loss Proceeds, the Company may temporarily reduce revolving credit borrowings.
Appears in 1 contract
Samples: Indenture (Cenveo, Inc)
Event of Loss. (a) Upon the occurrence or happening of any Event of Loss in respect of a Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has Loss, promptly, and not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) later than ten Business Days after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect Company knows of such Event of Loss Proceeds for a period not to exceed 365 days from Loss, give the expiration Agent notice of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used Loss, and within 95 days (or such longer period of time, up to 25 days, which is reasonably acceptable to the later Agent) of 365 days from their receipt from such Event the earlier of Loss or 365 days from the date (a) delivery to it of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10a Required Collateral Determination Certificate, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or which shall cause the applicable Guarantor to, be delivered within 10 ten Business Days thereof, make an offer (an “Event of Loss Offer”), solely to after the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value Company knows of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value occurrence of all Collateral, in each case, calculated immediately prior to the applicable an Event of Loss and (2b) ten Business Days after the aggregate principal amount of all Term Loans outstanding at the time occurrence of such Event of Loss, to the extent necessary to cause the Aggregate Collateral Value to equal or exceed the Required Collateral Amount (or if the Collateral Value Effective Date has not occurred, the Minimum Required Collateral Amount), designate by a supplement to Schedule 9.18 hereof delivered to the Agent (which shall promptly send copies thereof to each 2012 Bank) a Replacement Aircraft that is owned by a Pledged SPE free and clear of all Liens (other than Permitted Collateral Liens) and accompanied by (i) Appraisal Reports from the Appraisers as to the Aircraft Value of the Replacement Aircraft, and (ii) a certificate from an Authorized Officer, demonstrating that (in the case of the foregoing clause (i)) or certifying that (in the case of the foregoing clause (ii)) the Aggregate Collateral Value equals or exceeds the Required Collateral Amount (or the Minimum Required Collateral Amount if such replacement is effected prior to the Collateral Value Effective Date). The offer price for It is understood that no Unmatured Event of Default or Event of Default under this Section 9.19 shall be deemed to have occurred unless the Term Loans Loan Parties have failed to comply with such Section 9.19 and also failed to (x) make the prepayment referenced in any Section 13.8(a)(iii), in the case of an Event of Loss Offer shall be equal to 100% occurring after the Collateral Value Effective Date or (y) deliver the Cash Collateral referenced in Section 13.8(a)(v), in the case of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid an Event of Loss occurring prior to the applicable repayment date, payable in cashCollateral Value Effective Date.
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (International Lease Finance Corp)
Event of Loss. (ai) Upon the occurrence or happening of any If an Event of Loss in shall occur with respect of a Collateral Vessel (such Collateral Vesselto any Engine, the “Lost Mortgaged Collateral Vessel”), and Company will promptly notify the receipt of Event of Loss Proceeds Agent thereof in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent writing (in any event within five (5) Business Days days of such occurrence) and will, not later than 180 days after the receipt thereof of Proceeds in connection with such Event of Loss, mortgage hereunder, by complying with all of the terms of subsection (ii) below and held otherwise taking all necessary actions to provide that the Company (and the Agent upon foreclosure of the Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the replacement engine referred to below, an Acceptable Alternate Engine free of all Liens (other than Permitted Encumbrances and the Lease). Upon compliance with the preceding sentence within such 180-day period, the Agent will execute and deliver to the Company a partial release, in recordable form, releasing the lien of this Mortgage to the extent that it covers such Engine with respect to which such Event of Loss has occurred. Such Acceptable Alternate Engine shall thereupon constitute an "Engine" for all purposes hereof and shall be deemed to constitute part of the Spare Engine Collateral.
(ii) Whenever the Company shall subject any Engine to the lien and security interest of this Mortgage (as Collateral subject contemplated by paragraph (i) above), the Company will on or prior thereto:
(A) deliver to a Lien the Agent and duly file for recording under the Collateral Agreements pending Act, a Supplemental Chattel Mortgage substantially in the application form of Exhibit A hereto duly executed by the Company appropriately describing such engine to be subjected to the lien and security interest of this Mortgage;
(B) deliver to the Agent for filing financing statements under Article 9 of the Uniform Commercial Code of the States of Colorado and New York (or such other States as may be required at such time) covering the security interest created by this Mortgage to perfect the security interest of the Agent in the Engine to be subjected to the lien and security interest of this Mortgage;
(C) deliver to the Agent an Officers' Certificate dated the date of execution of said Supplemental Chattel Mortgage, stating:
(I) that the representations and warranties contained in Section 3 hereof are true and correct on and as of such funds in accordance date of execution with respect to such Engine and the Company;
(II) that, upon consummation of the terms of this Section 4.02. If 4(f), no Potential Event of Default or Event of Default will exist; and
(III) that all conditions precedent contemplated in this Section 4(f)(ii) have been complied with;
(D) furnish the Administrative Agent receives any with evidence of compliance with the insurance provisions of Section 4(g) hereof with respect to such Engine as the Agent may reasonably request;
(E) furnish the Agent with a warranty (as to title) xxxx of sale, in form and substance reasonably satisfactory to the Agent with respect to such Engine;
(F) furnish the Agent with such evidence of title such as the xxxx of sale as the Agent may reasonably request concerning such Engine;
(G) cause to be delivered to the Agent an appraisal by the Approved Appraisers relating to the Engine to be subjected to the lien and the security interest of this Mortgage stating that it has a value and utility at least equal to, and in as good operating condition as the Engine subject to such Event of Loss Proceedsimmediately prior to such Event of Loss, thenassuming compliance by the Company with all the terms of this Mortgage with respect to such Engine; and
(H) cause to be delivered to the Agent an opinion or opinions of counsel dated the date of execution of such Supplemental Chattel Mortgage, stating:
(I) that the Engine specifically described in said Supplemental Chattel Mortgage, is free and clear of all recorded Liens,
(II) that said Supplemental Chattel Mortgage (1) has been duly authorized, executed and delivered by Company, and (2) creates a valid, perfected and first priority security interest in and to the Engine described in said Supplemental Chattel Mortgage, enforceable against all third parties and securing the payment of all obligations purported to be secured thereby and that all action required to perfect fully such security interest has been taken and completed,
(III) that said Supplemental Chattel Mortgage has been duly filed for recordation in accordance with the provisions of the Act to continue the perfection and priority of the security interest intended to be created by the Mortgage,
(IV) that the Company (and the Agent upon succeeding to the Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the lease of the Engine described in said Supplemental Chattel Mortgage, and
(V) as to such other matters as the Agent may reasonably request. Promptly upon the recording of each Supplemental Chattel Mortgage under the Act, the Company will cause to be delivered to the Agent an opinion of counsel for the Company as to the due recording of such Supplemental Chattel Mortgage in accordance with the Act.
(iii) With respect to any Engine as between the Agent and the Company, any payments on account of an Event of Loss (other than insurance proceeds or other payments the application of which is provided for in Section 4(g) below and under the terms of the Credit Agreement) received from any government authority or other person shall be applied as follows:
(A) if such payments are received with respect to an Event of Loss to an Engine that has been or is being replaced by the Company pursuant to the terms hereof, so long as an there shall exist no Event of Default has not occurred and is continuingor Potential Event of Default, the Administrative Agent such payment shall cause such proceeds be paid over to be deposited into a deposit account controlled or retained by the Collateral Agent Company or the Lessee upon satisfaction of the conditions for replacement contained in paragraph (ii) above and until such time shall be held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers Agent in accordance with the terms of this Section 4.02.provisions hereof as security for the Secured Obligations; and
(bB) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or if such fewer number of days as payments are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs received with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with respect to which no replacement is being effected, such payments shall be applied to the prepayment of the Notes required pursuant to the terms hereofof the Credit Agreement and shall be held pursuant to the terms of this Mortgage, and the balance, if any, shall be paid over to or retained by the Company.
(civ) A binding commitment to apply Event In the event of Loss Proceeds from an Event a requisition for use by the United States Government of Loss in accordance with clause (b)(1) above any Engine, the Company shall toll promptly notify the 365-day period in respect Agent of such Event requisition and all of Loss Proceeds for a period the Company's obligations under this Mortgage shall continue to the same extent as if such requisition had not to exceed 365 days occurred. Any payments received by the Agent or the Company from the expiration of United States Government for the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date use of such binding commitmentEngine, shall be paid over to, or retained by, the Company.
(d) (iv) Any Event amount referred to in paragraph (iii) or (iv) of Loss Proceeds this Section 4(f) that have is payable to or retained by the Company shall not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely be paid to the Term LendersCompany or retained by the Company, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding if at the time of such Event of Loss. The offer price for the Term Loans in payment or retention any Event of Loss Offer Default or a Potential Event of Default shall have occurred and be continuing, but shall be equal held by or paid over to 100% the Agent as security for the obligations of the outstanding principal amountCompany under this Mortgage and the other Loan Documents, plus accrued and unpaid interestand, if anythe Agent shall declare the Credit Agreement to be in default, on shall be applied against the Term Loans repaid Company's obligations hereunder and thereunder as and when due. At such time as there shall not be continuing any such Event of Default or Potential Event of Default, such amount shall be paid to the applicable repayment dateCompany to the extent not previously applied in accordance with the preceding sentence. In addition, payable and whether or not there shall exist an Event of Default or Potential Event of Default, until such time as the Company shall request to be paid any amount referred to in cashparagraph (iii) or (iv) in order to effect the mortgaging hereunder of a replacement Engine, any amounts referred to in paragraphs (iii) or (iv) of this Section 4(f) shall be held by the Agent as security for the obligations of the Company under this Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Security Agreement and Chattel Mortgage (Atlas Air Inc)
Event of Loss. (a) Upon the occurrence or happening of any If an Event of Loss in shall occur with respect of a Collateral Vessel (such Collateral Vesselto an Airframe or an Engine, the “Lost Mortgaged Collateral Vessel”), Lessee will promptly notify the Lessor and the receipt of Event of Loss Proceeds Agent thereof in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent writing (in any event within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application days of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceedsoccurrence) and will, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 later than 180 days (subject to extension as provided in Section 4.02(c)) after the receipt occurrence of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required Loss, convey or cause to be utilized in respect conveyed to the Lessor, free of all Liens (other than Permitted Encumbrances) title to an asset sale offer Acceptable Alternate Airframe or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable GuarantorAcceptable Alternate Engine, as the case may be. Prior to or at the time of any such conveyance, the Lessee, at its own expense, will, as conditions to such transfer, (i) furnish the Lessor with a warranty (as to title) bill of sale, from a person and in form and substance reasonably xxxisfactory to the Lessor, with respect to such Acceptable Alternate Airframe or Acceptable Alternate Engine, (ii) cause a Lease Supplement to be filed for recording pursuant to Title 49 of the United States Code, as amended, (iii) furnish the Lessor with such evidence of the Lessee's title to such Acceptable Alternate Airframe or Acceptable Alternate Engine and of compliance with the insurance provisions of Section 14 hereof with respect to such Acceptable Alternate Airframe or Acceptable Alternate Engine as the Lessor may reasonably request, (iv) furnish the Lessor with an opinion of the Lessee's counsel to the effect that title to such Acceptable Alternate Airframe or Acceptable Alternate Engine has been duly conveyed to the Lessor free and clear of all Liens except Permitted Encumbrances and the Lessor and the Agent continue to have 1110 protection with respect to such Aircraft. Upon satisfaction of the foregoing conditions, the Lessor shall apply transfer to or at the direction of the Lessee without recourse or warranty all of the Lessor's right, title and interest, if any, in and to (A) the Airframe or Engine with respect to which such Event of Loss Proceeds occurred and furnish to or at its option to any combination the direction of the following:Lessee, at the Lessee's expense, a bill of sale without warranty other than to the absence of a Lxxxxr Lien in form and substance reasonably satisfactory to the Lessee, evidencing such transfer and (B) all claims, if any, against third parties, for damage to or loss of the Airframe or Engine subject to such Event of Loss, and such Airframe or Engine shall thereupon cease to be an Airframe or Engine leased hereunder. The Lessee shall cooperate with the Lessor and take all such actions as shall be requested by the Lessor so that the Lessor complies with subsection 4(f) of the Aircraft Chattel Mortgage. For all purposes hereof, each such Acceptable Alternate Airframe or Acceptable Alternate Engine shall, after such conveyance, be deemed part of the property leased hereunder, and shall be deemed an "Airframe" or "Engine," as the case may be. No Event of Loss under the circumstance contemplated by the terms of this paragraph (a) shall result in any reduction in Basic Rent or any other obligation of the Lessee hereunder.
(1b) With respect to acquire and substitute one the Airframe or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which Engine, as between the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent Lessor and the other Secured Parties; or
(2) make Lessee, any payments on account of an Event of Loss Offer (other than insurance proceeds or other payments the application of which is provided for in accordance Section 14 below) received from any governmental authority or other person shall be applied as follows:
(A) if such payments are received with respect to an Event of Loss to an Airframe or Engine that has been or is being replaced by the Lessee pursuant to the terms hereof., so long as there shall exist no Default or Lease Event of Default, such payment shall be paid over to or retained by the Lessee upon satisfaction of the conditions for replacement contained in paragraph (a) above and until such time shall be held by the Lessor as security for the obligations of the Lessee under the Lease; and
(B) if such payments are received with respect to an Event of Loss with respect to which no replacement is being effected, so much of such payments as shall not exceed
(A) the Stipulated Loss Value as of the date of payment plus (B) all unpaid Supplemental Rent due through the date of payment, plus (C) all unpaid Basic Rent for the period ending on the date of payment shall be paid by the Lessee to the Lessor and following the foregoing application, the balance, if any, of such payments shall be distributed between the Lessee and the Lessor as their respective interests may appear;
(c) A binding commitment to apply Event In the event of Loss Proceeds from an Event a requisition for use by the United States Government of Loss in accordance with clause (b)(1) above the Airframe or any Engine, the Lessee shall toll promptly notify the 365-day period in respect Lessor and the Agent of such Event requisition and all of Loss Proceeds for a period the Lessee's obligations under the Lease shall continue to the same extent as if such requisition had not to exceed 365 days occurred. Any payments received by the Lessor or the Lessee from the expiration United States Government for the use of the aforementioned 365-day period so long as Airframe or such Event of Loss Proceeds are actually used within Engine, to the later of 365 days from their receipt from such Event of Loss extent allocable to the Term, shall be paid over to, or 365 days from retained by, the date of such binding commitmentLessee.
(d) (i) Any Event of Loss Proceeds amount referred to in this Section 13 that have is payable to or retained by the Lessee shall not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely be paid to the Term LendersLessee or retained by the Lessee, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding if at the time of such payment or retention any Default or Lease Event of Loss. The offer price Default shall have occurred and be continuing, but shall be held by or paid over to the Lessor as security for the Term Loans in obligations of the Lessee under the Lease and shall be applied against the Lessee's obligations hereunder as and when due. At such time as there shall not be continuing any such Default or Lease Event of Loss Offer Default, such amount shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid paid to the applicable repayment date, payable Lessee to the extent not previously applied in cashaccordance with the preceding sentence.
Appears in 1 contract
Event of Loss. (a) Upon the occurrence or happening of any Event of Loss in respect of a Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 360 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Net Loss Proceeds from an Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor)Loss, the Borrowers Parent Company or the applicable Guarantoraffected Restricted Subsidiary, as the case may be, shall must apply such Event of the Net Loss Proceeds at its option to any combination of the followingProceeds:
(1a) to acquire and substitute one be reinvested in the business of the Parent Company or more Substitute Vessels (a Restricted Subsidiary and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel the extent that the assets that were the subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect of such Event of Loss constituted Collateral such replacement assets shall be required to constitute Collateral; provided that if the Parent Company or a Restricted Subsidiary enters into a binding agreement to acquire such assets within such 360 day period, such Net Loss Proceeds for a period not shall be deemed to exceed 365 days from the expiration of the aforementioned 365-day period have been applied pursuant to this clause (a) so long as such Net Loss Proceeds are applied to acquire such assets within 180 days following such 360th day;
(b) in the case of an Event of Loss Proceeds are actually used within involving ABL Priority Collateral, to repay ABL Obligations (and/or, to the later extent permitted under the terms of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject ABL Facility and the New Note Intercreditor Agreement, to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”to repurchase the Notes), solely and, in the case of ABL Obligations that are revolving obligations, permanently reduce the commitments with respect thereto; or
(c) to the Term Lenders, make an offer to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) Senior Priority Notes at 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid and if applicable, to make an offer to the holders of other Permitted Additional Pari Passu Obligations that by its terms requires the Parent Company or any of its Restricted Subsidiaries to make an offer to purchase such Permitted Additional Pari Passu Obligations upon an Event of Loss, to purchase such Permitted Additional Pari Passu Obligations on a pro rata basis with the Senior Priority Notes, in each case, in accordance with the Senior Priority Notes Indenture. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and other securities laws and regulations thereunder to the extent such laws or regulations are applicable repayment datein connection with the repurchase of the Notes pursuant to clause (c) above. To the extent that the provisions of any applicable securities laws or regulations are applicable in connection with the repurchase of the Notes and conflict with the Event of Loss provisions of this Note Purchase Agreement, payable the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Event of Loss provisions of this Note Purchase Agreement by virtue of such compliance. Any Net Loss Proceeds that remain following compliance by the Company with its obligations set forth in cashthe first paragraph of this Section 4.16 may be used for any purpose not otherwise prohibited by the Note Purchase Documents. Pending the final application of any Net Loss Proceeds, the Company may temporarily reduce revolving credit borrowings.
Appears in 1 contract
Samples: Indenture and Note Purchase Agreement (Cenveo, Inc)
Event of Loss. (a) Upon the occurrence or happening of any Event of Loss in respect of a Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cash.
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Event of Loss. (a) If any Event of Loss shall occur with respect to the Project, the Covered Spokes or any part thereof, the Borrower Entities shall promptly deliver notice thereof to DOE and, (a) diligently pursue all of their respective rights to compensation against all relevant insurers, reinsurers and Governmental Authorities, as applicable, in respect of such event, (b) compromise or settle any claim with respect to any Event of Loss involving an amount in excess of [xxx] (such Event of Loss, a “Threshold Event of Loss”) per claim or series of claims only upon prior written consent of DOE, and (c) pay or apply the Net Amount of all Loss Proceeds stemming from such event in accordance with this Section 7.04 including, to the extent required in this Section 7.04, for prepayments in accordance with Section 3.06(c)(iv) (Loss Proceeds).
(b) Upon the occurrence of any Event of Loss, Loss Proceeds related thereto shall be promptly deposited into, or happening credited to the Loss Proceeds Account. The applicable Borrower Entity shall, in advance, direct the relevant insurers, reinsurers and Governmental Authorities, as applicable, to pay Loss Proceeds directly to the Collateral Agent as loss payee, for deposit into the Loss Proceeds Account and subject to the use of such proceeds by the Borrower in accordance with this Section 7.04. If Loss Proceeds are paid to any Borrower Entity, all such Loss Proceeds shall be received in trust, for the benefit of the Collateral Agent, shall be segregated from other funds of the Borrower Entities, and shall be forthwith paid over to the Collateral Agent in the same form as received (with any necessary endorsement) for deposit to the Loss Proceeds Account.
(c) Upon the occurrence of any Event of Loss, the related Loss Proceeds of which must be applied for repair or replacement of any part of the Project or the Covered Spokes in accordance with paragraph (d), (e) or (f) of this Section 7.04, the Borrower shall promptly repair or remediate such loss and cause the Net Amounts of any Loss Proceeds associated with the loss to be applied to the payment of the costs of repair or restoration of the portion of the Project or Covered Spokes lost or damaged or otherwise, in each case, in accordance with paragraphs (d), (e) or (f) of this Section 7.04; provided, that, in each case, DOE shall have received from the Borrower a summary of the relevant Event of Loss and the basis for the Borrower’s decision to repair or remediate and a remediation plan including estimated cost and schedule for implementation.
(d) With respect to the Net Amount of any Loss Proceeds not from a Threshold Event of Loss, the Borrower shall apply such amounts within twelve months toward the repair or replacement of the affected assets; provided, that if the failure to use all or a portion of such proceeds toward repair or replacement would not reasonably be expected, in any material respect, to (i) reduce the annualized production capacity of the Project, (ii) reduce net revenues from HubCo’s sales, or (iii) increase the Operating Costs with respect to the Project, and DOE receives evidence, in form and substance satisfactory to it, of each of the foregoing, at the request of the Borrower, made in accordance with the Accounts Agreement, such Net Amount may be transferred to the Revenue Account on the next Payment Date for application in accordance with the Accounts Agreement.
(e) With respect to the Net Amount of any Loss Proceeds from a Threshold Event of Loss related to the Project, the Borrower shall undertake the relevant repairs and restoration, and apply the Net Amount thereof to pay the costs of the relevant repairs and restoration of the affected assets if, and only if, DOE reasonably determines, within 30 Business Days after the date of the occurrence of any Event of Loss and receipt of the Borrower’s proposed repair and restoration plan that includes estimated cost and schedule for implementation thereof, in consultation with the Independent Engineer, that:
(i) such repair or replacement is technically and economically feasible; and
(ii) the Borrower is in compliance with such other conditions and requirements as DOE shall consider appropriate in the circumstances.
(f) With respect to any Event of a Collateral Vessel (such Collateral VesselLoss, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds which are required or permitted to be deposited into a deposit account controlled by applied to repair or restore the Collateral Agent within five (5) Business Days of receipt thereof and held Project or the Covered Spokes, as Collateral subject to a Lien under which the Collateral Agreements pending the application of such funds Borrower shall repair or restore in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuingclauses (d) or (e) above, the Administrative Agent shall cause Borrower shall, on the tenth Business Day of each month until such proceeds restoration and repair has been completed and the contractors performing such restoration or repair work have been paid in full, deliver to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of DOE the following:
(1i) to acquire a detailed summary of the work performed in connection with any such restoration or repair during the preceding month and substitute one the itemized expenses that are then due and payable, together with copies of all invoices, conditional (upon payment only) lien waivers from the contractors, subcontractors and each other Person performing labor or more Substitute Vessels (furnishing materials in connection with such restoration or repair work and to make any Permitted Repairs other information and documents reasonably requested by DOE with respect theretoto such restoration or repair work; and
(ii) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which proposed Transfer/Withdrawal Request directing the Collateral Agent shall obtain a Liento cause the Depositary Bank to disburse to the contractors performing such restoration or repair work amounts constituting Loss Proceeds on deposit in the Loss Proceeds Account in the respective amounts then due and payable to such contractors.
(g) If any Loss Proceeds greater than [xxx] remain unused after the completion of such restoration and repair work, on a first-priority basis (subject or if restoration and repair work is not undertaken pursuant to Permitted Collateral Liens)this Section 7.04, on such Substitute Vessel for the benefit of itselfand, if applicable, the Administrative Agent and twelve month period contemplated in paragraph (d) above has expired, the other Secured Parties; or
(2) make an Event of Loss Offer Borrower shall deliver to DOE a Prepayment Election Notice in accordance with Section 3.06(c)(iv) (Loss Proceeds) and prepay such amounts as set out thereunder. If the terms hereof.
(c) A binding commitment Borrower fails to apply Event of Loss Proceeds from an Event of Loss timely deliver a Prepayment Election Notice in accordance with clause Section 3.06(c)(iv) (b)(1) above Loss Proceeds), then DOE shall toll be entitled to instruct the 365-day period in respect of Collateral Agent to apply such Event of amounts constituting Loss Proceeds for a period not to exceed 365 days from on deposit in the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior Account with respect to the applicable Event of Loss and to the prepayment of the Advances (2and, if applicable, capitalized interest thereon) on the aggregate principal amount of all Term Loans outstanding at the time second Business Day following receipt of such Event instructions, in accordance with Section 3.06(c)(iv) (Loss Proceeds); provided, that any remaining amounts equal to or less than [xxx] shall be transferred to the Revenue Account on the next Payment Date in accordance with Section 2.18(b) (Loss Proceeds Account) of Loss. the Accounts Agreement.
(h) The offer price for the Term Loans in Net Amount of any Loss Proceeds from a Threshold Event of Loss Offer not applied to restoration or repairs may be applied by the Borrower to pay (x) for Project Costs, (y) Covered Spoke Costs or (z) costs between the Substantial Completion Date and Project Completion Date that would be Project Costs if they had been expended prior to the Substantial Completion Date, in each case, due and payable within the twelve months following the date on which such Loss Proceeds were deposited into, or credited to the Loss Proceeds Account; provided, that, the use of any such Loss Proceeds shall not constitute or be equal to 100% counted as satisfaction of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cashEquity Funding Commitment.
Appears in 1 contract
Samples: Loan Arrangement and Reimbursement Agreement (Li-Cycle Holdings Corp.)
Event of Loss. (a) Upon In the occurrence or happening event of any an Event of Loss in respect of a Collateral Vessel (such Collateral VesselLoss, the “Lost Mortgaged Collateral Vessel”)Company may, and or may cause the receipt of Event of affected Guarantor to, apply the Net Loss Proceeds in respect thereof, the Borrowers shall cause all from such Event of Loss Proceeds to:
(a) the rebuilding, repair, replacement or construction of improvements to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral assets subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an the rebuilt, repaired or improved property or replacement property constitutes Additional Assets (provided that (x) such Additional Assets shall be limited to only Additional Assets that no later than the completion of such rebuilding, repair or improvement or the acquisition of such replacement have become Primary Collateral; (y) to the extent the assets subject to such Event of Default has not occurred Loss constitute Specified Collateral, such Additional Assets shall be limited to only Additional Assets constituting Specified Assets that have become Specified Collateral; and is continuing, (z) the Administrative Agent shall cause provisions of Section 4.28 have otherwise been complied with respect to such proceeds to be deposited into a deposit account controlled by Additional Assets no later than the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application completion of such funds by rebuilding, repair or improvement or the Borrowers in accordance with the terms acquisition of this Section 4.02.such replacement);
(b) Within 365 days acquire Additional Assets (provided that (x) such Additional Assets shall be limited to only Additional Assets that simultaneously with the acquisition thereof become Primary Collateral; (y) to the extent the assets subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds constitute Specified Collateral, such Additional Assets shall be limited to only Additional Assets constituting Specified Assets that simultaneously with the acquisition thereof become Specified Collateral; and (z) such Additional Assets are not required acquired until and unless the provisions of Section 4.28 have otherwise been complied with respect to be utilized such Additional Assets); or
(c) a combination of the actions set forth in the foregoing clauses (a) and (b). With respect to any property or asset subject to an Event of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness Loss pursuant to any instrument governing Indebtedness clause (4) of any Borrower the definition of “Event of Loss” that has a Fair Market Value (or any Guarantor)replacement cost, if greater) in excess of $1,000,000, the Borrowers Company (or the applicable affected Guarantor, as the case may be), shall apply such be required to receive consideration (i) at least equal to the Fair Market Value (as evidenced by a Board Resolution) of the assets subject to the Event of Loss Proceeds and (ii) at its option to least 75% of which is in the form of cash or Cash Equivalents. Unless and until any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Net Loss Proceeds from an Event of Loss are finally applied as specified in the first sentence of this Section 4.17 or in accordance with clause Section 4.19, the Company shall cause such Net Loss Proceeds to be held by the Collateral Agent as Collateral Monies in the Collateral Account. Any Net Loss Proceeds that are not applied as provided in the first sentence of this Section 4.17 within the later of (b)(1i) above shall toll the 365-day period in respect date 30 days after the date the Company or Restricted Subsidiary actually receives such Net Loss Proceeds and (ii) the date 270 days after the date of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cash.
Appears in 1 contract
Event of Loss. (a) Upon the occurrence or happening of any Event of Loss in respect of a Collateral Vessel (such Collateral Vessel, the “"Lost Mortgaged Collateral Vessel”"), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers applicable Borrower shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor)Proceeds, the Borrowers applicable Borrower or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1i) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens)basis, on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured PartiesLenders; or
(2ii) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will shall constitute “"Excess Loss Proceeds”". Subject to Section 4.10, when When the aggregate amount of Excess Loss Proceeds exceeds $50,000,00015,000,000, the Term Borrowers applicable Borrower shall, or shall cause the applicable Guarantor to, within 10 ten Business Days thereof, make an offer (an “"Event of Loss Offer”), ") solely to the Term Lenders, Lenders to repay or purchase the maximum principal amount of Term Loans in an amount (out of the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of LossProceeds. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cash.
Appears in 1 contract
Event of Loss. (a) Upon the occurrence or happening of any Event of Loss in respect of a Collateral Vessel (such Collateral Vessel, the “"Lost Mortgaged Collateral Vessel”"), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers Borrower shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Pari Passu Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to the DRH Existing Notes Indenture or any other instrument governing Indebtedness of any Borrower or any Guarantorthe Parent and its Restricted Subsidiaries), the Borrowers Borrower or the applicable Borrower Subsidiary Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Pari Passu Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens)basis, on such Substitute Vessel for the benefit of itself, the Administrative Agent Agent, the Lenders and the holders of other Secured PartiesPari Passu Obligations; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(11) above shall toll the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “"Excess Loss Proceeds”". Subject to Section 4.10, when When the aggregate amount of Excess Loss Proceeds exceeds $50,000,00015,000,000, the Term Borrowers Borrower shall, or shall cause the applicable Borrower Subsidiary Guarantor to, within 10 Business Days thereof, make an offer (an “"Event of Loss Offer”"), solely to the Term LendersLenders and other holders of Pari Passu Obligations, to repay or purchase the maximum principal amount of Term Loans in an amount (and other Pari Passu Obligations out of the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of LossProceeds. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cash.
Appears in 1 contract
Event of Loss. (ai) Upon the occurrence or happening of any If an Event of Loss in shall occur with respect of a Collateral Vessel (such Collateral Vesselto an Airframe or an Engine, the “Lost Mortgaged Collateral Vessel”), and Company will promptly notify the receipt of Event of Loss Proceeds Agent thereof in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent writing (in any event within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application days of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceedsoccurrence) and will, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 later than 180 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Proceeds in connection with such Event of Loss Proceeds Loss, mortgage hereunder, by complying with all of the terms of subsection (ii) below and otherwise taking all necessary actions to provide that the Company (and the Agent upon foreclosure of the Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the replacement airframe or engine referred to below, an Acceptable Alternate Airframe or Acceptable Alternate Engine free of all Liens (other than Permitted Encumbrances and the Lease). Upon compliance with the preceding sentence within such fewer number 180-day period, the Agent will execute and deliver to the Company a partial release, in recordable form, releasing the lien of days as are necessary this Mortgage to ensure the extent that it covers such Airframe or Engine with respect to which such Event of Loss Proceeds are not required to be utilized in respect of has occurred. Such Acceptable Alternate Airframe or Acceptable Alternate Engine shall thereupon constitute an asset sale offer "Airframe" or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, an "Engine," as the case may be, for all purposes hereof and shall apply be deemed to constitute part of the Aircraft.
(ii) Whenever the Company shall subject any Airframe or Engine to the lien and security interest of this Mortgage (as contemplated by paragraph (i) above), the Company will on or prior thereto:
(A) deliver to the Agent and duly file for recording under the Act, a Supplemental Chattel Mortgage substantially in the form of Exhibit A hereto duly executed by the Company appropriately describing such engine to be subjected to the lien and security interest of this Mortgage;
(B) deliver to the Agent for filing financing statements under Article 9 of the Uniform Commercial Code of the States of Colorado and New York (or such other States as may be required at such time) covering the security interest created by this Mortgage to perfect the security interest of the Agent in the Airframe or Engine to be subjected to the lien and security interest of this Mortgage;
(C) deliver to the Agent an Officers' Certificate dated the date of execution of said Supplemental Chattel Mortgage, stating:
(I) that the representations and warranties contained in Section 3 hereof are true and correct on and as of such date of execution with respect to such Airframe or Engine and the Company;
(II) that, upon consummation of the terms of this Section 4(f), no Potential Event of Default or Event of Default will exist; and
(III) that all conditions precedent contemplated in this Section 4(f)(ii) have been complied with;
(D) furnish the Agent with evidence of compliance with the insurance provisions of Section 4(g) hereof with respect to such Airframe or Engine as the Agent may reasonably request;
(E) furnish the Agent with a warranty (as to title) xxxx of sale, in form and substance reasonably satisfactory to the Agent with respect to such Airframe or Engine;
(F) furnish the Agent with such evidence of title such as the xxxx of sale as the Agent may reasonably request concerning such Airframe or Engine;
(G) cause to be delivered to the Agent an appraisal by the Approved Appraisers relating to the Airframe or Engine to be subjected to the lien and the security interest of this Mortgage stating that it has a value and utility at least equal to, and in as good operating condition as the Airframe or Engine subject to such Event of Loss Proceeds at its option immediately prior to any combination such Event of Loss, assuming compliance by the followingCompany with all the terms of this Mortgage with respect to such Airframe or Engine; and
(H) cause to be delivered to the Agent an opinion or opinions of counsel dated the date of execution of such Supplemental Chattel Mortgage, stating:
(I) that the Airframe or Engine specifically described in said Supplemental Chattel Mortgage, is free and clear of all recorded Liens,
(II) that said Supplemental Chattel Mortgage (1) has been duly authorized, executed and delivered by Company, and (2) creates a valid, perfected and first priority security interest in and to acquire the Airframe or Engine described in said Supplemental Chattel Mortgage, enforceable against all third parties and substitute one or more Substitute Vessels securing the payment of all obligations purported to be secured thereby and that all action required to perfect fully such security interest has been taken and completed,
(III) that said Supplemental Chattel Mortgage has been duly filed for recordation in accordance with the provisions of the Act to continue the perfection and priority of the security interest intended to be created by the Mortgage,
(IV) that the Company (and the Agent upon succeeding to make any Permitted Repairs the Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect theretoto the lease of the Airframe or Engine described in said Supplemental Chattel Mortgage, and
(V) for as to such Lost Mortgaged Collateral Vessel and make other matters as the Agent may reasonably request. Promptly upon the recording of each such Substitute Vessel subject Supplemental Chattel Mortgage under the Act, the Company will cause to a Ship Mortgage pursuant be delivered to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel an opinion of counsel for the benefit Company as to the due recording of itself, such Supplemental Chattel Mortgage in accordance with the Administrative Act.
(iii) With respect to the Airframe or any Engine as between the Agent and the other Secured Parties; or
(2) make Company, any payments on account of an Event of Loss Offer (other than insurance proceeds or other payments the application of which is provided for in Section 4(g) below and under the terms of the Credit Agreement) received from any government authority or other person shall be applied as follows:
(A) if such payments are received with respect to an Event of Loss to an Airframe or Engine that has been or is being replaced by the Company pursuant to the terms hereof, so long as there shall exist no Event of Default or Potential Event of Default, such payment shall be paid over to or retained by the Company or the Lessee upon satisfaction of the conditions for replacement contained in paragraph (ii) above and until such time shall be held by the Agent in accordance with the terms hereof.provisions hereof as security for the Secured Obligations; and
(cB) A binding commitment if such payments are received with respect to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above respect to which no replacement is being effected, such payments shall toll be applied to the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration prepayment of the aforementioned 365-day period so long as such Event Notes required pursuant to the terms of Loss Proceeds are actually used within the later Credit Agreement and shall be held pursuant to the terms of 365 days from their receipt from such Event of Loss this Mortgage, and the balance, if any, shall be paid over to or 365 days from retained by the date of such binding commitmentCompany.
(dC) In the event of a requisition for use by the United States Government of the Airframe or any Engine, the Company shall promptly notify the Agent of such requisition and all of the Company's obligations under this Mortgage shall continue to the same extent as if such requisition had not occurred. Any payments received by the Agent or the Company from the United States Government for the use of the Airframe or such Engine, shall be paid over to, or retained by, the Company.
(iD) Any Event amount referred to in paragraph (iii) or (iv) of Loss Proceeds this Section 4(f) that have is payable to or retained by the Company shall not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely be paid to the Term LendersCompany or retained by the Company, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding if at the time of such Event of Loss. The offer price for the Term Loans in payment or retention any Event of Loss Offer Default or a Potential Event of Default shall have occurred and be continuing, but shall be equal held by or paid over to 100% the Agent as security for the obligations of the outstanding principal amountCompany under this Mortgage and the other Loan Documents, plus accrued and unpaid interestand, if anythe Agent shall declare the Credit Agreement to be in default, on shall be applied against the Term Loans repaid Company's obligations hereunder and thereunder as and when due. At such time as there shall not be continuing any such Event of Default or Potential Event of Default, such amount shall be paid to the applicable repayment dateCompany to the extent not previously applied in accordance with the preceding sentence. In addition, payable and whether or not there shall exist an Event of Default or Potential Event of Default, until such time as the Company shall request to be paid any amount referred to in cashparagraph (iii) or (iv) in order to effect the mortgaging hereunder of a replacement Airframe or Engine, any amounts referred to in paragraphs (iii) or (iv) of this Section 4(f) shall be held by the Agent as security for the obligations of the Company under this Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Security Agreement and Chattel Mortgage (Atlas Air Inc)
Event of Loss. (a) Upon the occurrence or happening of If any Event of Loss in respect of a Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds event which may give rise to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer shall occur, the Borrower shall, and shall cause each of its Subsidiaries to, (i) in accordance with Section 8.3(f), upon discovery or receipt of notice of any such event provide written notice thereof to DOE, (ii) diligently pursue all its rights to compensation against all relevant insurers, reinsurers, Governmental Authorities and other third parties, as applicable, in respect of such event, (iii) not, without the terms hereof.
written consent of DOE compromise or settle any claim with respect to any such event involving an amount in excess of $25,000,000 per claim; and (civ) A binding commitment to pay or apply Event of Loss all Net Cash Proceeds stemming from an Event of Loss in accordance with clause the remaining provisions of this Section 7.5.
(b)(1b) above The Borrower shall toll the 365-day period use commercially reasonable efforts to cause all Net Cash Proceeds in respect of such an Event of Loss to be paid by the relevant insurers, reinsurers, Governmental Authorities and other third parties, as applicable, directly to the Collateral Trustee as loss payee and, if paid to the Borrower (or its Subsidiaries), such Net Cash Proceeds shall be received in trust and for a period not to exceed 365 days from the expiration benefit of the aforementioned 365-day period Collateral Trustee segregated from other funds of the Borrower (or such Subsidiary), and shall be forthwith paid over to the Collateral Trustee, in the same form as received (with any necessary endorsement).
(c) Upon the occurrence of an Event of Loss with respect to which Net Cash Proceeds are payable in respect of a single loss in an amount not in excess of $25,000,000, so long as no Event of Default has occurred and is continuing and the Borrower delivers a Reinvestment Notice with respect to such Net Cash Proceeds to DOE, the Collateral Trustee shall disburse such Net Cash Proceeds to the Borrower, and the Borrower shall apply such Net Cash Proceeds to the payment of the costs of repair or restoration of the portion of the Project or other property lost or damaged. All Net Cash Proceeds received by the Borrower (or its Subsidiaries) under this Section 7.5(c) in connection with an Event of Loss Proceeds are actually used within shall be held in an interest-bearing account segregated from other funds of the later Borrower (or such Subsidiary) (each, a “Restoration Account”), and until disbursed in accordance herewith, shall constitute additional security for the Secured Obligations under the Loan Documents. The Borrower shall deliver monthly reports with respect to any Restoration Accounts in accordance with Section 8.4(e). Any funds remaining in a Restoration Account upon the completion of 365 days from their receipt from such Event of Loss the related repair or 365 days from restoration shall be forthwith paid over to the date of such binding commitmentCollateral Trustee in accordance with Section 7.5(b), to be applied by DOE in accordance with Section 7.5(e) below.
(d) Upon the occurrence of any other Event of Loss, disbursement of the Net Cash Proceeds by the Collateral Trustee to the Borrower shall be permitted if, and only if, (i) Any Event of Loss Proceeds DOE shall have determined that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% repair or replacement of such Excess Loss Proceeds the relevant portion of the Project or other property lost or damaged is technically and economically feasible and (B) the product of Borrower is in compliance with such other conditions and requirements as DOE shall consider appropriate in the circumstances and (1ii) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel Borrower delivers a Reinvestment Notice with respect to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior such Net Cash Proceeds to DOE. Disbursements to the applicable Borrower under this Section 7.5(d) shall be made from time to time in accordance with disbursement procedures required by DOE and the Collateral Trustee.
(e) All Net Cash Proceeds relating to an Event of Loss and not otherwise applied in accordance with Section 7.5(c) or (2d) or by any applicable Reinvestment Prepayment Date shall be applied by DOE to the aggregate principal amount prepayment of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cashaccordance with Section 3.6.
Appears in 1 contract
Samples: Loan Arrangement and Reimbursement Agreement (Tesla Motors Inc)
Event of Loss. (a) Upon the occurrence or happening of any Event of Loss in respect of a Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Net Loss Proceeds from an Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor)Loss, the Borrowers Company or the applicable Guarantoraffected Restricted Subsidiary, as the case may be, shall must apply the Net Loss Proceeds:
(a) to the rebuilding, repair, replacement or construction of improvements to the property affected by such Event of Loss Proceeds at its option (the “Subject Property”); provided, however, that the Company delivers to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect Trustee within 120 days of such Event of Loss Proceeds for a period not to exceed 365 days from an Officers’ Certificate certifying that the expiration Company has applied (or will apply after receipt of any anticipated insurance or similar proceeds) the aforementioned 365-day period so long as such Event of Net Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.in accordance with this clause (a);
(db) to permanently repay First Lien Obligations (iin the case of First Lien Obligations that are revolving obligations, permanently reduce the commitments with respect thereto); or
(c) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding Notes at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amountamount thereof, plus accrued and unpaid interest, if any, on the Term Loans repaid and if applicable, to make an offer to the holders of other Permitted Additional Pari Passu Obligations that by its terms requires the Company to make an offer to purchase such Permitted Additional Pari Passu Obligations upon an Event of Loss, to purchase such Permitted Additional Pari Passu Obligations on a pro rata basis with the Notes. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable repayment datein connection with the repurchase of the Notes pursuant to clause (3) above. To the extent that the provisions of any applicable securities laws or regulations conflict with the Event of Loss provisions of this Indenture, payable in cashthe Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Event of Loss provisions of this Indenture by virtue of such compliance. Pending the final application of any Net Loss Proceeds, the Company may temporarily reduce revolving credit borrowings.
Appears in 1 contract
Samples: Indenture (Cenveo, Inc)
Event of Loss. (a) Upon the occurrence or happening of Within 365 days after any Event of Loss with respect to any Collateral with a fair market value (or replacement cost, if greater) in respect excess of a Collateral Vessel (such Collateral Vessel$1,000,000, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (affected Issuer or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable GuarantorRestricted Subsidiary, as the case may be, shall may apply the Net Loss Proceeds from such Event of Loss:
(i) to repay debt under the Credit Agreement or other First Lien Obligations that are Pari Passu Indebtedness; or
(ii) to the rebuilding, repair, replacement or construction of improvements to the asset or property affected by such Event of Loss Proceeds at its option to any combination of (the following:
(1) to acquire and substitute one or more Substitute Vessels (and “Subject Property”), with no concurrent obligation to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject purchase of any Second Lien Obligations; provided, however, that the Issuers deliver to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect Trustee within 90 days of such Event of Loss Proceeds for Loss:
(A) a period not written opinion from a reputable contractor that the Subject Property can be rebuilt, repaired, replaced or constructed in, and operating in, substantially the same condition as it existed prior to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss within 18 months of the Event of Loss; and
(B) an Officers’ Certificate certifying that the Issuers and/or their Restricted Subsidiaries, as applicable, have available from Net Loss Proceeds are actually used within or other sources sufficient funds to complete the later of 365 days from their receipt rebuilding, repair, replacement or construction described in clause (A) above. Any rebuilt, repaired, replaced, constructed or improved property will remain Collateral and remain subject to a perfected Second Priority Lien under the Collateral Documents, except as may otherwise by be provided in this Indenture and the Collateral Documents. Any Net Loss Proceeds from such Event of Loss or 365 days will be segregated from the date other assets of such binding commitment.
(d) the Issuers or any of their Subsidiaries and will be held in a collateral account in accordance with the Collateral Documents pursuant to the Cash Collateral Control Agreement. Any Net Loss Proceeds that are not applied in accordance with clauses (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(band/or (ii) above will constitute be deemed “Excess Loss Proceeds.”. Subject to Section 4.10, when
(b) When the aggregate amount of Excess Loss Proceeds exceeds $50,000,00015,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, Issuers will make an offer (an “Event of Loss Offer”)) to (i) first, solely all holders of Second Lien Obligations to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (Second Lien Obligations that may be purchased out of the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and and, (Bii) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateralsecond, in each case, calculated immediately prior to the applicable Event extent any amounts remain, all holders of Loss and (2) Pari Passu Indebtedness that contain provisions similar to these set forth in this Indenture with respect to offers to purchase or redeem with the aggregate principal amount proceeds of all Term Loans outstanding at the time of such Event Asset Sales and/or Events of Loss. The offer price for the Term Loans in any Event of Loss Offer shall will be equal to 100% of the outstanding principal amount, amount plus accrued and unpaid interest, Liquidated Damages, if any, and any other amounts due, if any, on the Term Loans repaid Second Lien Obligations or Pari Passu Indebtedness, as the case may be, to the applicable repayment datedate of purchase, and will be payable in cash. Any Event of Loss Offer will be made substantially in accordance with the applicable procedures described in Section 3.09 of this Indenture. If any Excess Loss Proceeds remain after consummation of an Event of Loss Offer, the Issuers may use such Excess Loss Proceeds for any purpose not otherwise prohibited by this Indenture and the Collateral Documents. If the aggregate principal amount of Second Lien Obligations tendered pursuant to an Event of Loss Offer exceeds the Excess Loss Proceeds, the Trustee will select the Second Lien Obligations to be purchased on a pro rata basis based on the principal amount of Second Lien Obligations tendered. To the extent that any Excess Loss Proceeds remain after consummation of an Event of Loss Offer pursuant to this Section 4.18, the Issuers may use those Excess Loss Proceeds for any purpose not otherwise prohibited by this Indenture and the amount of Excess Loss Proceeds shall be reset to zero.
(c) In the event of an Event of Loss with respect to any Collateral pursuant to clause (iii) of the definition of “Event of Loss” with respect to any property or assets that have a fair market value (or replacement cost, if greater) in excess of $2,000,000, the affected Issuer or Restricted Subsidiary, as the case may be, will be required to receive consideration at least equal to the fair market value of the property or assets subject to the Event of Loss.
Appears in 1 contract
Event of Loss. (ai) Upon the occurrence or happening of any If an Event of Loss shall occur with respect to an Airframe or an Engine, Company will promptly notify Agent thereof in respect of a Collateral Vessel writing (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent any event within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application days of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceedsoccurrence) and will, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 later than 180 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Proceeds in connection with such Event of Loss Proceeds Loss, mortgage hereunder, by complying with all of the terms of subsection (ii) below and otherwise taking all necessary actions to provide that Company (and the Agent upon foreclosure of Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the replacement airframe or engine referred to below, an Acceptable Alternate Airframe or Acceptable Alternate Engine free of all Liens (other than Permitted Encumbrances and the Lease). Upon compliance with the preceding sentence within such fewer number 180-day period, Agent will execute and deliver to Company a partial release, in recordable form, releasing the lien of days as are necessary this Mortgage to ensure the extent that it covers such Airframe or Engine with respect to which such Event of Loss Proceeds are not required to be utilized in respect of has occurred. Such Acceptable Alternate Airframe or Acceptable Alternate Engine shall thereupon constitute an asset sale offer "Airframe" or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantoran "Engine", as the case may be, for all purposes hereof and shall apply be deemed to constitute part of the Aircraft.
(ii) Whenever Company shall subject any Airframe or Engine to the lien and security interest of this Mortgage (as contemplated by paragraph (i) above), Company will on or prior thereto:
(A) deliver to Agent and duly file for recording under the Act, a Supplemental Chattel Mortgage substantially in the -15- 16 form of Exhibit A hereto duly executed by Company appropriately describing such engine to be subjected to the lien and security interest of this Mortgage;
(B) deliver to Agent for filing financing statements under Article 9 of the Uniform Commercial Code of the States of Colorado and New York (or such other States as may be required at such time) covering the security interest created by this Mortgage to perfect the security interest of Agent in the Airframe or Engine to be subjected to the lien and security interest of this Mortgage;
(C) deliver to Agent an Officers' Certificate dated the date of execution of said Supplemental Chattel Mortgage, stating:
(I) that the representations and warranties contained in Section 3 hereof are true and correct on and as of such date of execution with respect to such Airframe or Engine and Company;
(II) that, upon consummation of the terms of this Section 4(f), no Potential Event of Default or Event of Default will exist; and
(III) that all conditions precedent contemplated in this Section 4(f)(iii) have been complied with.
(D) furnish Agent with evidence of compliance with the insurance provisions of Section 4(g) hereof with respect to such Airframe or Engine as Agent may reasonably request;
(E) furnish Agent with a warranty (as to title) bill xx sale, in form and substance reasonably satisfactory to Agent with respect to such Airframe or Engine;
(F) furnish Agent with such evidence of title such as the bill xx sale as Agent may reasonably request concerning such Airframe or Engine;
(G) cause to be delivered to Agent an appraisal by the Approved Appraisers relating to the Airframe or Engine to be subjected to the lien and the security interest of this Mortgage stating that it has a value and utility at least equal to, and in as good operating condition as the Airframe or Engine subject to such Event of Loss Proceeds at its option immediately prior to any combination such Event of Loss, assuming compliance by Company with all the followingterms of this Mortgage with respect to such Airframe or Engine; and
(H) cause to be delivered to Agent an opinion or opinions of counsel dated the date of execution of such Supplemental Chattel Mortgage, stating:
(I) that the Airframe or Engine specifically described in said Supplemental Chattel Mortgage, is free and clear of all recorded Liens,
(II) that said Supplemental Chattel Mortgage (1) to acquire has been duly authorized, executed and substitute one or more Substitute Vessels (delivered by Company, and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make creates a valid, perfected and first priority security interest in and to the Airframe or Engine described in said Supplemental Chattel Mortgage, enforceable against all third parties and securing the payment of all obligations purported to be secured thereby and that all action required to perfect fully such security interest has been taken and completed,
(III) that said Supplemental Chattel Mortgage has been duly filed for recordation in accordance with the provisions of the Act to continue the perfection and priority of the security interest intended to be created by the Mortgage,
(IV) that Company (and the Agent upon succeeding to Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the lease of the Airframe or Engine described in said Supplemental Chattel Mortgage, and
(V) as to such other matters as Agent may reasonably request. Promptly upon the recording of each Supplemental Chattel Mortgage under the Act, Company will cause to be delivered to Agent an opinion of counsel for Company as to the due recording of such Supplemental Chattel Mortgage in accordance with the Act.
(iii) With respect to the Airframe or any Engine, as between the Agent and Company, any payments on account of an Event of Loss Offer (other than insurance proceeds or other payments the application of which is provided for in Section 4(g) below and under the terms of the Credit Agreement) received from any government authority or other person shall be applied as follows:
(A) if such payments are received with respect to an Event of Loss to an Airframe or Engine that has been or is being replaced by Company pursuant to the terms hereof, so long as there shall exist no Event of Default or Potential Event of Default, such payment shall be paid over to or retained by Company or Lessee upon satisfaction of the conditions for replacement contained in paragraph (ii) above and until such time shall be held by Agent in accordance with the terms hereof.provisions hereof as security for the Secured Obligations; and
(cB) A binding commitment if such payments are received with respect to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above respect to which no replacement is being effected, such payments shall toll be applied to the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration prepayment of the aforementioned 365-day period so long as such Event Notes required pursuant to the terms of Loss Proceeds are actually used within the later Credit Agreement and shall be held pursuant to the terms of 365 days from their receipt from such Event of Loss this Mortgage, and the balance, if any, shall be paid over to or 365 days from the date of such binding commitmentretained by Company.
(div) In the event of a requisition for use by the United States Government of the Airframe or any Engine, Company shall promptly notify Agent of such requisition and all of Company's obligations under this Mortgage shall continue to the same extent as if such requisition had not occurred. Any payments received by Agent or Company from the United States Government for the use of the Airframe or such Engine, shall be paid over to, or retained by, Company.
(iv) Any Event amount referred to in paragraph (iii) or (iv) of Loss Proceeds that have this Section 4(f) which is payable to or retained by Company shall not been previously applied be paid to Company or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10retained by Company, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding if at the time of such Event of Loss. The offer price for the Term Loans in payment or retention any Event of Loss Offer Default or a Potential Event of Default shall have occurred and be continuing, but shall be equal held by or paid over to 100% Agent as security for the obligations of Company under this Mortgage and the outstanding principal amountother Loan Documents, plus accrued and unpaid interestand, if anyAgent shall declare the Credit Agreement to be in default, on the Term Loans repaid shall be applied against Company's obligations hereunder and thereunder as and when due. At such time as there shall not be continuing any such Event of Default or Potential Event of Default, such amount shall be paid to Company to the applicable repayment dateextent not previously applied in accordance with the preceding sentence. In addition, payable and whether or not there shall exist an Event of Default or Potential Event of Default, until such time as Company shall request to be paid any amount referred to in cashparagraph (iii) or (iv) in order to effect the mortgaging hereunder of a replacement Airframe or Engine, any amounts referred to in paragraphs (iii) or (iv) of this Section 4(f) shall be held by the Agent as security for the obligations of Company under this Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Security Agreement and Chattel Mortgage (Atlas Air Inc)
Event of Loss. (a) If any Event of Loss shall occur with respect to the Project or any part thereof, the Borrower shall promptly deliver notice thereof to the Guarantor and:
(i) diligently pursue all of its rights to compensation against all relevant insurers, reinsurers and Governmental Authorities, as applicable, in respect of such event;
(ii) compromise or settle any claim with respect to any Event of Loss involving an amount in excess of [*****] (such Event of Loss, a “Threshold Event of Loss”) per claim only upon prior written consent of the Guarantor; and
(iii) pay or apply the Net Amount of all Loss Proceeds received by the Borrower with respect to such event in accordance with this Section 7.04 including, to the extent required in this Section 7.04, for prepayments in accordance with Section 3.05(c)(iv) (Mandatory Prepayments).
(b) Upon the occurrence of any Event of Loss, Loss Proceeds shall be promptly deposited into, or happening credited to the Loss Proceeds Account. Each Borrower Entity shall, in advance, direct the relevant insurers, reinsurers and Governmental Authorities, as applicable, to pay Loss Proceeds directly to the Collateral Agent as loss payee for deposit to the Loss Proceeds Account (and subject to the use of such proceeds by the Borrower in accordance with this Section 7.04). If Loss Proceeds are paid to any Borrower Entity, such Loss Proceeds shall be received in trust, for the benefit of the Collateral Agent, shall be segregated from other funds of the Borrower, and shall be forthwith paid over to the Collateral Agent in the same form as received (with any necessary endorsement) for deposit to the Loss Proceeds Account.
(c) Upon the occurrence of any Event of Loss, the Borrower shall promptly repair or remediate such loss and cause the Net Amount of all Loss Proceeds associated with the loss to be applied to the payment of the costs of repair or restoration of the portion of the Project lost or damaged if and to the extent required in paragraphs (d), (e) or (f), as applicable of this Section 7.04 or, with prior written consent of the Guarantor, reimburse the Borrower or Sponsor, as applicable, for any cost of repair or restoration paid using Equity Contributions made prior to the receipt of such Loss Proceeds; provided that in each case, the Guarantor shall have: (i) received from the Borrower a summary of the relevant Event of Loss, the basis for the Borrower’s decision to repair or remediate and a remediation plan; and (ii) approved such remediation plan.
(d) With respect to the Net Amount of any Loss Proceeds not from a Threshold Event of Loss, the Borrower shall apply such amounts within [*****] following the receipt thereof toward the repair or replacement of the affected assets except to the extent that the failure to use all or a portion of such proceeds toward repair or replacement would not reasonably be expected to: (i) reduce the annualized service capacity of the Project; (ii) reduce net revenues from the usage of the Project by consumers; or (iii) to increase the operation or maintenance expenses with respect to the Project, such amounts may be transferred to the Revenue Account on the next Payment Date for application in accordance with the Accounts Agreement, and the Guarantor has received evidence, in form and substance satisfactory to it, of the foregoing.
(e) With respect to the Net Amount of any Loss Proceeds from a Threshold Event of Loss, the Borrower shall undertake the relevant repairs and restoration, and apply the Net Amounts from Loss Proceeds Account (or, with the prior written consent of the Guarantor, reimburse the Borrower or the Sponsor, as applicable, for any cost of restoration prior to the receipt of such Loss Proceeds paid using Equity Contributions) to pay the costs of the relevant repairs and restoration if, and only if, the Guarantor determines, after consultation with the Independent Engineer, that:
(i) the repair or replacement of the relevant portion of the Project is technically and economically feasible; and
(ii) each Borrower Entity is in compliance with such other conditions and requirements as the Guarantor shall consider appropriate in the circumstances.
(f) In respect of any Event of Loss in respect of that: (i) is not a Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Threshold Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such but exceeds a value of [*****]; or (ii) is a Threshold Event of Loss Proceeds for which the Guarantor has consented to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof repair and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds restoration in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuingclause (e) above, the Administrative Agent shall cause Borrower shall, on [*****] until such proceeds restoration and repair has been completed and the contractors performing such restoration or repair work have been paid in full, deliver to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of Guarantor the following:
(1i) to acquire a detailed summary of the work performed in connection with any such restoration or repair during the preceding month and substitute one the itemized expenses that are then due and payable, together with copies of all invoices, conditional (upon payment only) lien waivers from the contractors performing such restoration or more Substitute Vessels (repair work and to make any Permitted Repairs other information and documents reasonably requested by the Guarantor with respect theretoto such restoration or repair work; and
(ii) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which proposed Funds Withdrawal/Transfer Certificate directing the Collateral Agent shall obtain a Lien, to cause the Depositary Bank to disburse to the contractors performing such restoration or repair work amounts constituting Loss Proceeds on a first-priority basis deposit in the Loss Proceeds Account in the respective amounts then due and payable to such contractors.
(subject to Permitted Collateral Liensg) Upon the completion of any such restoration and repair work (as validated in writing by the Independent Engineer), on such Substitute Vessel for or if restoration and repair work is not undertaken pursuant to this Section 7.04, and to the benefit of itself, extent that the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer Borrower has not delivered a Prepayment Election Notice in accordance with Section 3.05(c) (Mandatory Prepayments), the terms hereof.
(c) A binding commitment Guarantor shall be entitled to instruct the Collateral Agent to cause the Depositary Bank to apply Event of any remaining amounts constituting Loss Proceeds from an Event on deposit in the Loss Proceeds Account to the prepayment of Loss the Advances on the [*****] following receipt of such instructions, in accordance with clause (b)(1) above shall toll the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.
(dSection 3.05(c) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”Mandatory Prepayments), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cash.
Appears in 1 contract
Samples: Loan Guarantee Agreement (EVgo Inc.)
Event of Loss. Within three (a3) Upon days of receipt by the occurrence Borrower, Transocean, the Agent, the Collateral Agent or happening any of the Lenders of any casualty insurance proceeds or any condemnation or other similar proceeds from any governmental authority or other Person from any Event of Loss in respect of a Collateral Vessel (such Collateral Vesselthe "Insurance Receipt Date"), the “Lost Mortgaged Collateral Vessel”Borrower may, upon written notice to the Agent (who shall promptly provide such notice to the Lenders), and elect to reconstruct the receipt of Drillship or the Rig, as applicable, with the Event of Loss Proceeds in respect thereofso long as (i) such reconstruction can be completed within eighteen (18) months from the date of such Event of Loss, as reasonably determined by the Borrowers shall cause all Borrower at such time and as demonstrated to the reasonable satisfaction of the Agent, (ii) such Event of Loss has not caused and is not reasonably likely to cause either of the Amoco Contracts or any Substitute Contract to terminate or cancel (with no obligation to pay a cancellation fee and other than pursuant to the Free Cancellation Right) and Amoco or such substitute contracting party, as applicable, provides written confirmation to the Agent that it will continue to lease the applicable vessel at the end of such reconstruction period pursuant and subject to the terms of such applicable contract for the full stated term thereof, (iii) the Collateral Agent (for the benefit of the Lenders, the "Lenders" under the Transocean Contracts Loan Agreement and the Swap Parties) is provided a security interest in any construction contract and any letter of credit or other collateral provided to the Borrower or Transocean in connection therewith on terms substantially similar to the applicable Security Documents and otherwise as reasonably satisfactory to the Agent, (iv) Transocean executes and delivers a new performance guaranty of the reconstruction thereof containing terms substantially similar to the applicable portions of the Transocean Performance Guaranty and otherwise as reasonably satisfactory to the Agent, (v) the Borrower shall be able to obtain loss of hire insurance for such vessel after the reconstruction period therefor as then reasonably determined by the Borrower and as demonstrated to the reasonable satisfaction of the Agent, and (vi) the Borrower shall demonstrate to the reasonable satisfaction of the Agent that it shall be able to timely pay its Obligations hereunder and any "true up" costs and expenses payable to any Swap Parties as a result of such Event of Loss and such reasonably determined reconstruction period under the Interest Rate Protection Agreements as required pursuant to Section 7.1(j) and no Default shall have occurred and be continuing, in which event all Event of Loss Proceeds to shall be deposited into a deposit account controlled segregated and held by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under made available by the Collateral Agreements pending Agent to the application of Borrower (x) for such funds reconstruction, using contractors, plans and specifications and methods substantially in accordance with the terms Functional Requirements as reasonably satisfactory to the Agent and the Instructing Group, and (y) for the payment of this Section 4.02the Obligations, the Transocean Contracts Obligations and the Swap Obligations, as provided below. If the Administrative Agent receives Borrower elects not to, or is unable pursuant to the terms and conditions hereof to, reconstruct the applicable vessel with any such Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent Borrower shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
within three (b3) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to Insurance Receipt Date, make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit mandatory principal prepayment of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied the remaining unpaid Vessel Amortization Payments for the Drillship or invested the Rig, as provided in Section 4.02(bapplicable, (ii) will constitute “Excess Loss Proceeds”. Subject the remaining unpaid "Vessel Amortization Payments" under the Transocean Contracts Loan Agreement for the Drillship or the Rig, as applicable, and (iii) after giving effect to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer preceding clause (an “Event of Loss Offer”ii), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) any unpaid Transocean Contracts Aggregate Principal Amount in the Fair Market Value amount of any Required Coverage Payment (or, if less, the Lost Mortgaged Collateral Vessel to remaining unpaid Transocean Contracts Aggregate Principal Amount) and (y) if such outstanding Transocean Contracts Aggregate Principal Amount is less than the Fair Market Value of all CollateralRequired Coverage Payment, Loans outstanding hereunder in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cash.such
Appears in 1 contract
Samples: Secured Loan Agreement (Transocean Sedco Forex Inc)
Event of Loss. Subject to the terms of the Intercreditor Agreement, not later than ten (a10) Upon Business Days following the occurrence or happening receipt of any Net Cash Proceeds from any Event of Loss by a Credit Party or any of its Subsidiaries, such Credit Party shall make prepayments in accordance with this Section 1.8(d) in an aggregate amount equal to 100% of such Net Cash Proceeds; provided that:
(i) such proceeds shall not be required to be so applied on such date to the extent that the Borrower intends to use an amount equal to such proceeds 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 useful to the business of the Credit Parties and their respective Subsidiaries, no later than 12 months following the date of receipt of such proceeds;
(ii) if any portion of such Net Cash Proceeds shall not be so applied within 12 months of the receipt of such proceeds, an amount equal to such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 1.8(d); provided further that if within such 12-month period any portion of such Net Cash Proceeds is contractually committed to be reinvested, such commitment shall be treated as a permitted reinvestment of such Net Cash Proceeds so long as the Borrower enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (it being understood that upon the termination of such commitment, any remaining Net Cash Proceeds shall be applied as provided in this Section 1.8(d)); and
(iii) if the property subject to such Event of Loss constituted Revolving Priority Collateral (as defined in the Intercreditor Agreement), the amount of any Net Cash Proceeds of an Event of Loss in respect of a such Revolving Priority Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to may be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cashABL Facility.
Appears in 1 contract
Samples: Credit Agreement (Axiall Corp/De/)
Event of Loss. (a) Upon In the occurrence or happening event of any an Event of Loss with respect to any Collateral with a fair market value in respect excess of a Collateral Vessel (such Collateral Vessel$5.0 million, the “Lost Mortgaged Collateral Vessel”), and Company may apply the receipt of Event of Net Loss Proceeds in respect thereof, the Borrowers shall cause all from such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent Loss, within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repayreceipt, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the followingoption:
(1) to acquire and substitute one the rebuilding, repair, restoration, replacement or more Substitute Vessels construction of improvements to the affected asset or property (and the "Subject Property");
(2) to make any Permitted Repairs capital expenditures with respect to Collateral or to acquire properties or assets that will (i) constitute Collateral and (ii) be used in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related, ancillary or complementary thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(3) a combination of the actions set forth in the foregoing clauses (1) and (2).
(b) make an Event Pending the final application of the Net Loss Offer Proceeds, the Net Loss Proceeds shall be deposited in the Collateral Account. Any such Net Loss Proceeds so deposited shall be promptly disbursed by the Trustee in accordance with the terms hereofprovisions of this Indenture upon notice from the Company such that the Company may apply such Net Loss Proceeds in accordance with this Section 4.19.
(c) A binding commitment to apply Event of Any Net Loss Proceeds from an Event of Loss not applied in accordance with clause clauses (b)(11), (2) above shall toll the 365-day period in respect or (3) of such Event paragraph (a) of Loss Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used this Section 4.19 within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of the receipt of such Net Cash Proceeds or that is not designated for investment in Subject Property in respect of a project that shall have been commenced, and for which binding commitment.
(d) (i) Any Event contractual commitments shall have been entered into, prior to the end of Loss Proceeds that such 365-day period, which project shall not have not been previously applied or invested as provided in Section 4.02(b) will abandoned, shall constitute “"Excess Loss Proceeds”. Subject to Section 4.10, when ." When the aggregate amount of Excess Loss Proceeds exceeds $50,000,0005.0 million, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, Company will make an offer to purchase (an “Event of the "Loss Proceeds Offer”), solely to the Term Lenders, to repay or purchase ") the maximum principal amount of Term Loans in an amount (Notes that may be purchased out of the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of LossProceeds. The offer price for the Term Loans in any Event of Loss Proceeds Offer shall will be equal to 100% of the outstanding principal amountamount of the Notes, plus accrued and unpaid interestinterest and Additional Interest, if any, on the Term Loans repaid to the Purchase Date. If any Excess Loss Proceeds remain after consummation of a Loss Proceeds Offer, the Company may use such remaining amount for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in any such Loss Proceeds Offer exceeds the amount of Excess Loss Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis (based upon the aggregate principal amount of Notes tendered). Upon completion of each Loss Proceeds Offer, the amount of Excess Loss Proceeds will be deemed to have been reset at zero. The Loss Proceeds Offer shall be made in compliance with the provisions set forth in Article III hereof, and shall include all instructions and materials necessary to enable Holders to tender their Notes.
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable repayment datein connection with the repurchase of Notes pursuant to a Loss Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.19, payable in cashthe Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.19 by virtue thereof.
Appears in 1 contract
Samples: Indenture (Omnova Solutions Inc)
Event of Loss. Within three (a3) Upon days of receipt by the occurrence Borrower, the Guarantor, the Agent, the Collateral Agent or happening any of the Lenders of any casualty insurance proceeds or any condemnation or other similar proceeds from any governmental authority or any other Person, from any Event of Loss in respect of a Collateral Vessel (such Collateral Vesselthe "Insurance Receipt Date"), the “Lost Mortgaged Collateral Vessel”Borrower may, upon written notice to the Agent (who shall promptly provide such notice to the Lenders), and elect to reconstruct the receipt of Drillship or the Rig, as applicable, with the Event of Loss Proceeds in respect thereof, the Borrowers shall cause all so long as (i) (x) if such Event of Loss occurs before the Conversion Date, such reconstruction can be completed before the Conversion Date as reasonably determined by the Borrower at such time and as demonstrated to the reasonable satisfaction of the Agent, or (y) if such Event of Loss occurs after the Conversion Date, such reconstruction can be completed within eighteen (18) months from the date of such Event of Loss, as reasonably determined by the Borrower at such time and as demonstrated to the reasonable satisfaction of the Agent, in which event all Event of Loss Proceeds to shall be deposited into a deposit account controlled segregated and held by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under made available by the Collateral Agreements pending Agent to the application of Borrower for such funds purpose, using contractors, plans and specifications and methods substantially in accordance with the Functional Requirements as reasonably satisfactory to the Agent and the Majority Lenders, and for the payment of the Obligations, any LSF Obligations and the Swap Obligations, (ii) such Event of Loss has not caused or is not reasonably likely to cause either of the Amoco Contracts or any Substitute Contracts to terminate or cancel (with no obligation to pay a cancellation fee and other than pursuant to the Free Cancellation Right) and Amoco or such substitute contracting party, as applicable, provides written confirmation to the Agent that it will continue to lease the applicable vessel at the end of such reconstruction period pursuant and subject to the terms of this such applicable contract for the full stated term thereof, (iii) the Collateral Agent is provided a security interest in any construction contract and any letter of credit or other collateral provided to the Borrower or the Guarantor in connection therewith on terms substantially similar to the applicable Security Documents and otherwise as reasonably satisfactory to the Agent, (iv) the Guarantor executes and delivers a new performance guaranty of the reconstruction thereof containing terms substantially similar to the applicable portions of the Transocean Performance Guaranty and otherwise as reasonably satisfactory to the Agent, (v) the Borrower shall be able to obtain loss of hire insurance for such vessel after the reconstruction period therefor as then reasonably determined by the Borrower and as demonstrated to the reasonable satisfaction of the Agent, and (vi) the Borrower shall demonstrate to the reasonable satisfaction of the Agent that it shall be able to timely pay its Obligations hereunder and any "true-up" costs and expenses payable to any Swap Parties as a result of such Event of Loss and such reasonably determined reconstruction period under the Interest Rate Protection Agreement as required pursuant to Section 4.026.10 and no Default or Event of Default shall have occurred and be continuing. If the Administrative Agent receives Borrower elects not to, or is unable pursuant to the terms and conditions hereof to, reconstruct or repair the applicable vessel with any such Event of Loss Proceeds, thenthe Borrower shall within three (3) days of the Insurance Receipt Date, so long make a mandatory principal prepayment of (i) either (x) prior to the Conversion Date, the Financed Amount with respect to the applicable vessel, or (y) the Vessel Amortization Payments of the Drillship or the Vessel Amortization Payments of the Rig, as applicable, in the case of both (x) and (y), after giving effect to any prior prepayments of the Borrower's Obligations hereunder as provided herein, and (ii) after the Conversion Date and if any LSF Loans are then outstanding, make a principal prepayment of the LSF Loans in an amount equal to the LSF Vessel Amortization Payments of the Drillship or the LSF Amortization Payments of the Rig, as applicable. Each such mandatory payment shall be accompanied by a payment of all accrued and unpaid interest on the Loans prepaid and any applicable breakage fees and funding losses pursuant to Section 2.13. The Borrower shall also pay any "true- up" costs and expenses payable to any Swap Parties as a result of such prepayment under the Interest Rate Protection Agreement as required pursuant to Section 6.10. Each such mandatory prepayment shall be applied to the Construction Loans and then to the Tranche A Loans, or to the required Vessel Amortization Payments with respect to the vessel the subject of such Event of Default has not occurred and is continuingLoss, as applicable. Any Event of Loss Proceeds received at any time by the Borrower, the Administrative Guarantor, the Agent, the Collateral Agent or any of the Lenders shall cause such proceeds (i) if received by any Person other than the Collateral Agent, forthwith be turned over to be deposited into a deposit account controlled the Collateral Agent, or (ii) if received by the Collateral Agent and held (or turned over to the Collateral Agent pursuant to clause (i)), be applied as Collateral subject directed by the Borrower from time to a Lien time to the payment of Obligations (including without limitation to the mandatory prepayment provided for in this Section 2.11(c)), to the payment of LSF Obligations (including, without limitation, to any mandatory prepayment of LSF Loans required to be made under the Collateral Agreements pending the application Lease Securitization Facility as a result of such funds by Event of Loss), if any, to the Borrowers payment of Swap Obligations or to the payment of costs incurred in connection with the reconstruction of the Drillship or the Rig, as applicable, if undertaken in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c2.11(c)) after the receipt of any . Any Event of Loss Proceeds held by the Collateral Agent (i) if the Borrower elects to undertake the reconstruction of the Drillship or the Rig, as applicable, after such fewer number reconstruction is completed as evidenced by a certificate from the Borrower certifying the completion of days such reconstruction in form and substance reasonably satisfactory to the Agent and an Amoco Letter of Acceptance with respect thereto, or (ii) if the Borrower elects not to undertake the reconstruction of the Drillship or the Rig, as are necessary to ensure that such Event applicable, after the partial mandatory prepayment of Loss Proceeds are not (x) the Loans provided for in this Section 2.11(c), (y) any partial mandatory prepayment of the LSF Loans, if any, required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), made under the Borrowers or the applicable Guarantor, Lease Securitization Facility as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect result of such Event of Loss Proceeds for is made and (z) after payment of any "true-up" costs and expenses payable by the Borrower as a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date result of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested prepayment under the Interest Rate Protection Agreement as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject required pursuant to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time 6.10 as a result of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer , shall be equal to 100% of released by the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid Collateral Agent to the applicable repayment date, payable in cashBorrower upon demand.
Appears in 1 contract
Event of Loss. (ai) Upon the occurrence or happening of any If an Event of Loss shall occur with respect to an Airframe or an Engine, Company will promptly notify Agent thereof in respect of a Collateral Vessel writing (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent any event within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application days of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceedsoccurrence) and will, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 later than 180 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Proceeds in connection with such Event of Loss Proceeds Loss, mortgage hereunder, by complying with all of the terms of subsection (ii) below and otherwise taking all necessary actions to provide that Company (and the Agent upon foreclosure of Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the replacement airframe or engine referred to below, an Acceptable Alternate Airframe or Acceptable Alternate Engine free of all Liens (other than Permitted Encumbrances and the Lease). Upon compliance with the preceding sentence within such fewer number 180-day period, Agent will execute and deliver to Company a partial release, in recordable form, releasing the lien of days as are necessary this Mortgage to ensure the extent that it covers such Airframe or Engine with respect to which such Event of Loss Proceeds are not required to be utilized in respect of has occurred. Such Acceptable Alternate Airframe or Acceptable Alternate Engine shall thereupon constitute an asset sale offer "Airframe" or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantoran "Engine", as the case may be, for all purposes hereof and shall apply be deemed to constitute part of the Aircraft.
(ii) Whenever Company shall subject any Airframe or Engine to the lien and security interest of this Mortgage (as contemplated by paragraph (i) above), Company will on or prior thereto:
(A) deliver to Agent and duly file for recording under the Act, a Supplemental Chattel Mortgage substantially in the form of Exhibit A hereto duly executed by Company appropriately describing such engine to be subjected to the lien and security interest of this Mortgage;
(B) deliver to Agent for filing financing statements under Article 9 of the Uniform Commercial Code of the States of Colorado and New York (or such other States as may be required at such time) covering the security interest created by this Mortgage to perfect the security interest of Agent in the Airframe or Engine to be subjected to the lien and security interest of this Mortgage;
(C) deliver to Agent an Officers' Certificate dated the date of execution of said Supplemental Chattel Mortgage, stating:
(I) that the representations and warranties contained in Section 3 hereof are true and correct on and as of such date of execution with respect to such Airframe or Engine and Company;
(II) that, upon consummation of the terms of this Section 4(f), no Potential Event of Default or Event of Default will exist; and
(III) that all conditions precedent contemplated in this Section 4(f)(iii) have been complied with.
(D) furnish Agent with evidence of compliance with the insurance provisions of Section 4(g) hereof with respect to such Airframe or Engine as Agent may reasonably request;
(E) furnish Agent with a warranty (as to title) bill xx sale, in form and substance reasonably satisfactory to Agent with respect to such Airframe or Engine;
(F) furnish Agent with such evidence of title such as the bill xx sale as Agent may reasonably request concerning such Airframe or Engine;
(G) cause to be delivered to Agent an appraisal by the Approved Appraisers relating to the Airframe or Engine to be subjected to the lien and the security interest of this Mortgage stating that it has a value and utility at least equal to, and in as good operating condition as the Airframe or Engine subject to such Event of Loss Proceeds at its option immediately prior to any combination such Event of Loss, assuming compliance by Company with all the followingterms of this Mortgage with respect to such Airframe or Engine; and
(H) cause to be delivered to Agent an opinion or opinions of counsel dated the date of execution of such Supplemental Chattel Mortgage, stating:
(I) that the Airframe or Engine specifically described in said Supplemental Chattel Mortgage, is free and clear of all recorded Liens,
(II) that said Supplemental Chattel Mortgage (1) to acquire has been duly authorized, executed and substitute one or more Substitute Vessels (delivered by Company, and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make creates a valid, perfected and first priority security interest in and to the Airframe or Engine described in said Supplemental Chattel Mortgage, enforceable against all third parties and securing the payment of all obligations purported to be secured thereby and that all action required to perfect fully such security interest has been taken and completed,
(III) that said Supplemental Chattel Mortgage has been duly filed for recordation in accordance with the provisions of the Act to continue the perfection and priority of the security interest intended to be created by the Mortgage,
(IV) that Company (and the Agent upon succeeding to Company's interest in the Lease) will continue to be entitled to the benefits of Section 1110 of the Bankruptcy Code with respect to the lease of the Airframe or Engine described in said Supplemental Chattel Mortgage, and
(V) as to such other matters as Agent may reasonably request. Promptly upon the recording of each Supplemental Chattel Mortgage under the Act, Company will cause to be delivered to Agent an opinion of counsel for Company as to the due recording of such Supplemental Chattel Mortgage in accordance with the Act.
(iii) With respect to the Airframe or any Engine, as between the Agent and Company, any payments on account of an Event of Loss Offer (other than insurance proceeds or other payments the application of which is provided for in Section 4(g) below and under the terms of the Credit Agreement) received from any government authority or other person shall be applied as follows:
(A) if such payments are received with respect to an Event of Loss to an Airframe or Engine that has been or is being replaced by Company pursuant to the terms hereof, so long as there shall exist no Event of Default or Potential Event of Default, such payment shall be paid over to or retained by Company or Lessee upon satisfaction of the conditions for replacement contained in paragraph (ii) above and until such time shall be held by Agent in accordance with the terms hereof.provisions hereof as security for the Secured Obligations; and
(cB) A binding commitment if such payments are received with respect to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above respect to which no replacement is being effected, such payments shall toll be applied to the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration prepayment of the aforementioned 365-day period so long as such Event Notes required pursuant to the terms of Loss Proceeds are actually used within the later Credit Agreement and shall be held pursuant to the terms of 365 days from their receipt from such Event of Loss this Mortgage, and the balance, if any, shall be paid over to or 365 days from the date of such binding commitmentretained by Company.
(div) In the event of a requisition for use by the United States Government of the Airframe or any Engine, Company shall promptly notify Agent of such requisition and all of Company's obligations under this Mortgage shall continue to the same extent as if such requisition had not occurred. Any payments received by Agent or Company from the United States Government for the use of the Airframe or such Engine, shall be paid over to, or retained by, Company.
(iv) Any Event amount referred to in paragraph (iii) or (iv) of Loss Proceeds that have this Section 4(f) which is payable to or retained by Company shall not been previously applied be paid to Company or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10retained by Company, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding if at the time of such Event of Loss. The offer price for the Term Loans in payment or retention any Event of Loss Offer Default or a Potential Event of Default shall have occurred and be continuing, but shall be equal held by or paid over to 100% Agent as security for the obligations of Company under this Mortgage and the outstanding principal amountother Loan Documents, plus accrued and unpaid interestand, if anyAgent shall declare the Credit Agreement to be in default, on the Term Loans repaid shall be applied against Company's obligations hereunder and thereunder as and when due. At such time as there shall not be continuing any such Event of Default or Potential Event of Default, such amount shall be paid to Company to the applicable repayment dateextent not previously applied in accordance with the preceding sentence. In addition, payable and whether or not there shall exist an Event of Default or Potential Event of Default, until such time as Company shall request to be paid any amount referred to in cashparagraph (iii) or (iv) in order to effect the mortgaging hereunder of a replacement Airframe or Engine, any amounts referred to in paragraphs (iii) or (iv) of this Section 4(f) shall be held by the Agent as security for the obligations of Company under this Mortgage and the other Loan Documents.
Appears in 1 contract
Samples: Security Agreement and Chattel Mortgage (Atlas Air Inc)
Event of Loss. Subject to the terms of the Intercreditor Agreement and the RMT Note Indenture, not later than five (a5) Upon Business Days following the occurrence or happening receipt of any Net Cash Proceeds from any Event of Loss by a Credit Party or any of its Subsidiaries, such Credit Party shall make prepayments in accordance with this Section 1.8(d) in an aggregate amount equal to 100% of such Net Cash Proceeds; 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 a Certificate of a Responsible Officer to Administrative Agent on or prior to such date stating that such Credit Party intends to use an amount equal to such proceeds 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 useful to the business of the Credit Parties and their respective Subsidiaries, no later than 12 months following the date of receipt of such proceeds; provided that if the property subject to such Event of Loss constituted Collateral under the Collateral Documents, then all property purchased pursuant to this subsection shall be made subject to the Lien of the applicable Collateral Documents in favor of the Collateral Agent, for the benefit of the Secured Parties in accordance with Section 4.13;
(ii) if any portion of such Net Cash Proceeds shall not be so applied within 18 months of the receipt of such proceeds, an amount equal to such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 1.8(d); and
(iii) to the extent required by the ABL Credit Agreement, if the property subject to such Event of Loss constituted Revolving Priority Collateral, the amount of any Net Cash Proceeds of an Event of Loss in respect of a such Revolving Priority Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to may be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect of such Event of Loss Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cashABL Facility.
Appears in 1 contract
Samples: Credit Agreement (Axiall Corp/De/)
Event of Loss. Borrower shall at its expense promptly repair all material repairable damage to any tangible Collateral. In the event that there is an Event of Loss, then, on or before the first to occur (athe “Trigger Date”) Upon of (i) ninety (90) days after the occurrence or happening of any such Event of Loss in respect Loss, or (ii) ten (10) Business Days after the date on which either Borrower or Administrative Agent shall receive any proceeds of a Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt insurance on account of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by (unless the Collateral Agent within five “Event of Loss Prepayment” (5as defined below) Business Days of receipt thereof and held is deferred as Collateral subject to a Lien under provided in the Collateral Agreements pending the application of such funds in accordance with the terms penultimate sentence of this Section 4.02. If the 3.4(i)), or any underwriter of insurance on such Collateral shall advise either Borrower or Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor), the Borrowers or the applicable Guarantor, as the case may be, shall apply such Event of Loss Proceeds at its option to any combination of the following:
(1) to acquire and substitute one or more Substitute Vessels (and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period it disclaims liability in respect of such Event of Loss Proceeds for a period not Loss, Borrower shall, at Borrower’s option, either replace the Collateral subject to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Event of Loss Proceeds are actually used within with comparable Collateral free of all Liens other than Permitted Liens (in which event Borrower shall be entitled to utilize the later proceeds of 365 days from their receipt from insurance on account of such Event of Loss or 365 days from the date for such purpose, and may retain any excess proceeds of such binding commitment.
(d) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shallinsurance), or shall cause permanently prepay the applicable Guarantor to, within 10 Business Days thereof, make Obligations by an offer (an “Event of Loss Offer”), solely amount equal to the Term Lendersactual cash value of such Collateral as determined by either the insurance company’s payment (plus any applicable deductible) or, to repay or purchase the maximum principal amount in absence of Term Loans in an amount insurance company payment, as reasonably determined by Administrative Agent (the “Event of Loss Offer AmountPrepayment”) equal to the lesser of (A) 100% of ); it being further understood that any such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss Prepayment shall cause an immediate permanent reduction in the Loan in the amount of such prepayment and shall not reduce the amount of any future reductions in the Loan that may be required hereunder. Notwithstanding the foregoing and provided that (i) no Event of Default has occurred or is continuing and (2ii) the aggregate principal amount insurance proceeds shall be deposited with Administrative Agent as cash collateral for the Obligations, Borrower may defer any required Event of Loss Prepayment for up to ninety (90) days in the case of Collateral other than derricks and drill pipe and one hundred and fifty (150) days in the case of derricks and drill pipe from the Trigger Date for the purpose of repairing Collateral or locating and acquiring comparable replacement equipment that shall constitute Collateral free of all Term Loans outstanding Liens other than Permitted Liens if Borrower is proceeding with diligence and in good faith to repair, replace, or acquire comparable replacement equipment. Notwithstanding the foregoing, if at the time of occurrence of such Event of Loss. The offer price for Loss or any time thereafter prior to replacement or the Term Loans in any Event of Loss Offer Prepayment, as aforesaid, an Event of Default shall have occurred and be continuing hereunder, then Administrative Agent may at its sole option, exercisable at any time while such Event of Default shall be equal continuing, require Borrower to 100% of either replace such Collateral or prepay the outstanding principal amountObligations, plus accrued and unpaid interest, if any, on the Term Loans repaid to the applicable repayment date, payable in cashas aforesaid.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Clayton Williams Energy Inc /De)
Event of Loss. (a) Upon the occurrence or happening of any Event of Loss in respect of a Collateral Vessel (such Collateral Vessel, the “Lost Mortgaged Collateral Vessel”), and the receipt of Event of Loss Proceeds in respect thereof, the Borrowers shall cause all such Event of Loss Proceeds to be deposited into a deposit account controlled by the Collateral Agent within five (5) Business Days of receipt thereof and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds in accordance with the terms of this Section 4.02. If the Administrative Agent receives any Event of Loss Proceeds, then, so long as an Event of Default has not occurred and is continuing, the Administrative Agent shall cause such proceeds to be deposited into a deposit account controlled by the Collateral Agent and held as Collateral subject to a Lien under the Collateral Agreements pending the application of such funds by the Borrowers in accordance with the terms of this Section 4.02.
(b) Within 365 360 days (subject to extension as provided in Section 4.02(c)) after the receipt of any Net Loss Proceeds from an Event of Loss Proceeds (or such fewer number of days as are necessary to ensure that such Event of Loss Proceeds are not required to be utilized in respect of an asset sale offer or similar offer to repay, repurchase or redeem Indebtedness pursuant to any instrument governing Indebtedness of any Borrower or any Guarantor)Loss, the Borrowers Parent Company or the applicable Guarantoraffected Restricted Subsidiary, as the case may be, shall must apply such Event of the Net Loss Proceeds at its option to any combination of the followingProceeds:
(1a) to acquire and substitute one be reinvested in the business of the Parent Company or more Substitute Vessels (a Restricted Subsidiary and to make any Permitted Repairs with respect thereto) for such Lost Mortgaged Collateral Vessel and make each such Substitute Vessel the extent that the assets that were the subject to a Ship Mortgage pursuant to which the Collateral Agent shall obtain a Lien, on a first-priority basis (subject to Permitted Collateral Liens), on such Substitute Vessel for the benefit of itself, the Administrative Agent and the other Secured Parties; or
(2) make an Event of Loss Offer in accordance with the terms hereof.
(c) A binding commitment to apply Event of Loss Proceeds from an Event of Loss in accordance with clause (b)(1) above shall toll the 365-day period in respect of such Event of Loss constituted Collateral such replacement assets shall be required to constitute Collateral; provided that if the Parent Company or a Restricted Subsidiary enters into a binding agreement to acquire such assets within such 360 day period, such Net Loss Proceeds for a period not shall be deemed to exceed 365 days from the expiration of the aforementioned 365-day period have been applied pursuant to this clause (a) so long as such Net Loss Proceeds are applied to acquire such assets within 180 days following such 360th day;
(b) in the case of an Event of Loss Proceeds involving ABL Priority Collateral, to repay ABL Obligations (and, in the case of ABL Obligations that are actually used within revolving obligations, permanently reduce the later of 365 days from their receipt from such Event of Loss or 365 days from the date of such binding commitment.commitments with respect thereto); or
(dc) (i) Any Event of Loss Proceeds that have not been previously applied or invested as provided in Section 4.02(b) will constitute “Excess Loss Proceeds”. Subject to Section 4.10, when the aggregate amount of Excess Loss Proceeds exceeds $50,000,000, the Term Borrowers shall, or shall cause the applicable Guarantor to, within 10 Business Days thereof, make an offer (an “Event of Loss Offer”), solely to the Term Lenders, to repay or purchase the maximum principal amount of Term Loans in an amount (the “Event of Loss Offer Amount”) equal to the lesser of (A) Notes at 100% of such Excess Loss Proceeds and (B) the product of (1) the ratio of (x) the Fair Market Value of the Lost Mortgaged Collateral Vessel to (y) the Fair Market Value of all Collateral, in each case, calculated immediately prior to the applicable Event of Loss and (2) the aggregate principal amount of all Term Loans outstanding at the time of such Event of Loss. The offer price for the Term Loans in any Event of Loss Offer shall be equal to 100% of the outstanding principal amount, plus accrued and unpaid interest, if any, on the Term Loans repaid and if applicable, to make an offer to the holders of other Permitted Additional Pari Passu Obligations that by its terms requires the Parent Company or any of its Restricted Subsidiaries to make an offer to purchase such Permitted Additional Pari Passu Obligations upon an Event of Loss, to purchase such Permitted Additional Pari Passu Obligations on a pro rata basis with the Notes, in each case, in accordance with Section 3.09. The Company shall comply with the requirements of Rule 14e 1 under the Exchange Act and other securities laws and regulations thereunder to the extent such laws or regulations are applicable repayment datein connection with the repurchase of the Notes pursuant to clause (c) above. To the extent that the provisions of any applicable securities laws or regulations conflict with the Event of Loss provisions of this Indenture, payable the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Event of Loss provisions of this Indenture by virtue of such compliance. Any Net Loss Proceeds that remain following compliance by the Company with its obligations set forth in cashthe first paragraph of this Section 4.19 may be used for any purpose not otherwise prohibited by this Indenture. Pending the final application of any Net Loss Proceeds, the Company may temporarily reduce revolving credit borrowings.
Appears in 1 contract
Samples: Indenture (Cenveo, Inc)
